<\> 'J* 



s 



<X* V 






& 



A' 












1 . 






o 



V- 






.«> ^ 









^ 



















"<& .< 






^ 



£ 



v< 












% 



N 



J- 6 



ECLECTIC EDUCATIONAL SERIES 



MANUAL 



CONSTITUTION 



UNITED STATES 



ISRAEL WARD ANDREWS, D.D., LL.D. 



I) 



f> 




glcbbieb €bitiou 



%] 








VAN ANTWERP, BRAGG & CO. 

CINCINNATI AND NEW YORK 



\ 



1 



Copyright, 1887, Van Antwerp, Bragg & Co. 



dtlttiir |)rfss 



TO THE 



trustees of Parbila dLoIUge 



WITH WHOM, FOR NEARLY HALF A CENTURY, THE AUTHOR HAS 

BEEN MOST PLEASANTLY ASSOCIATED, THIS VOLUME 

IS GRATEFULLY INSCRIBED 




r THHIS work has grown out of the necessities and experience of the 
class-room. For the proper instruction of the student in the im- 
portant subject of civil government, a clear exposition of the great prin- 
ciples of the Constitution is needed, with a summary of the legislative 
provisions in which they have been embodied. When the author took 
charge of this department of study, he found himself embarrassed in 
both these respects, and especially the latter. Questions were continually 
suggesting themselves to which answers could be obtained only after 
laborious research. 

Urged on by a deep interest in the subject, and availing himself of the 
unusual facilities for the prosecution of studies of this character furnished 
by the library of the College, the author entered upon a somewhat ex- 
tended investigation of our governmental history. The materials thus 
accumulated, and accumulating, having for some years furnished the basis 
for instruction by lectures, have now been condensed into this form, and 
are given to the public in the hope that other instructors may be in some 
measure relieved from the excessive labor which similar personal examina- 
tion would involve. 

While the primary object was to provide a suitable text-book, a convic- 
tion that a knowledge of our government can not be too widely diffused, 
and that large numbers would welcome a good work on this subject, has 

led to the attempt to make the volume a manual adapted for consultation 

(v) 



VI PREFACE. 

and reference by the general public With this end in view the author 
has sought to embody in the work that kind — and, so far as space would 
allow, that amount — of information on the various topics which an intelli- 
gent citizen would desire to possess. 

As the value of a work of this kind depends in large measure upon its 
accuracy, it is proper to say that in nearly every instance the statements 
touching the legislation or other action of the government have been 
taken from official publications. 

Marietta College, 
January, 1 874. 

A careful revision of the work has been made, incorporating in it all 
important changes in the legislation of the country, and giving the prac- 
tical workings of the Constitution to the present time. 

Marietta College, 
August, 1878. 

The necessity of preparing new plates has given the author the oppor- 
tunity of making whatever alterations and additions the progress of legis- 
lation and the experience and suggestions of fourteen years have made de- 
sirable. The use of small type for a portion of the text will bring the 
work within the reach of classes in the schools that have not time for the 
whole. Marginal headings have also been introduced, and the lists of 
cabinet and other officers have been removed to the Appendix. The 
utmost efforts have been made to render the work worthy of its purpose. 

Marietta College, 
January, 1888. 



CHAPTER I. 

Civil Government — Its Object, Origin, and Nature — Different 
Forms of Government — Peculiarity of that of the 
United States — Not a Consolidated Republic, nor a 
League of States ........ 



CHAPTER II. 

The Colonial Governments — Royal, Proprietary, and Char- 
ter — The Causes of the Revolution — The Continental 
Congress — The Declaration of Independence 



23 



CHAPTER III. 

The Articles of Confederation — Their Failure — The Conven- 
tion to Form a Constitution ..... 



35 



CHAPTER IV. 



The Constitution of the United States 



Article 
Article 



I. 
II. 

Article III. 
Article 
Article 
Article VI. 
Article VII. 



IV. 
V. 



The Legislative Department 

The Executive Department 

The Judiciary 

Various Subjects 

Mode of Amending the Constitution 

Supremacy of the Constitution 

Ratification of the Constitution, 



44 

47 

151 
182 

209 
230 

237 
241 



(vii) 



Vlll CONTEXTS. 

CHAPTER V. 

The Ratification of the Constitution by Conventions in the 
Several States ........ 

CHAPTER VI. 
The Admission of New States — The Territorial Governments. 

CHAPTER VII. 
Practical Operation of the Constitution 

CHAPTER VIII. 

The State Governments ........ 

Appendix 



264 



275 



295 



328 

351 



CIVIL GOVERNMENT 



CHAPTER I. 



Civil Government — Its Object, Origin, and Nature — Different 
Forms of Government — Peculiarity of that of the United 
States — Not a Consolidated Republic nor a League of States. 

A knowledge of the nature and operation of the government 
under which we live is necessary for the successful pros- 
ecution of the business of life, and to secure the „ , , 

Knowledge 

happiness of ourselves and of those dependent of our 

upon us. We can thus adapt ourselves to the Government, 
circumstances in which we are placed, and avoid those per- 
plexities and difficulties in which one ignorant of the laws and 
institutions of his country is liable to be involved. The fact 
that a man is subject to a government is a sufficient reason for 
studying its character and workings, although he may have no 
participation in its management. 

In a republican government the importance of such knowl- 
edge is still greater, because the people are not only amenable 
to the laws, but also have a voice in electing those who make 
and execute them. He who lives under a despotism should 
acquaint himself with its character and workings for his own 
protection ; a citizen of a republic should do the same, because 
he is to some extent responsible for the government. 

Until within the last few years, Americans have been lament- 
ably ignorant of their National government, both as to its history 

(9) 



IO CIVIL GOVERNMENT. 

and its operation. The War of the Rebellion, which could 
hardly have occurred had the whole people understood the true 
relation of the States to the National government, has had the 
effect to direct attention to governmental questions. There is 
probably a stronger desire for such knowledge now than at 
any previous time, and a corresponding demand for the intro- 
duction of such studies into all our schools of higher grade. 

Two circumstances facilitate the acquisition of a competent 
knowledge of our government. First, our national existence 
extends over a comparatively brief period. But little more than 
a hundred years have passed since we became an independent 
people, while most of the civilized nations of the world have 
had a long and checkered history. Secondly, our Constitution 
is a written instrument, framed with the utmost care, and 
adopted by the people after the most careful deliberation. No 
other nation has a constitution that can compare with it, either 
in its comprehensiveness and completeness of subject, or in the 
precision of its language. 

The object of civil government can not be better expressed 

than in the words of our Constitution. It is to "establish jus- 

The object ^ ce ' insure domestic tranquillity, provide for the 

of Civil common defense, promote the general welfare, and 
secure the blessings of liberty." These were the 
express ends to secure which the people of the United States 
ordained and established our National Constitution. These are 
the ends which all governments, of whatever form, are under 
obligation to seek. Civil governments are not established for 
the good of the rulers, but for the good of the people. They 
are not for the good of one or a few, at the expense of the 
others, but for the good of all. 

The general good could not be secured without government. 

Government Civil government is thus a necessity. Without it, jus- 

a tice could not be established, or domestic tranquillity 

SS1 y * insured, or the common defense provided for, or the 

general welfare promoted, or the blessings of liberty secured. 



OBJECT OF GOVERNMENT. II 

Law is the guardian of liberty. Without law there would be 
no liberty, but in its stead, anarchy. One object of civil gov- 
ernment is to protect us in our rights. It does this by restrain- 
ing those who would interfere with these rights. Civil govern- 
ment is thus rendered necessary by the disposition of some to do 
wrong to others, and it can not be dispensed with so long as 
this disposition to interfere with the rights of others continues. 

But government is not merely repressive. Its necessity is not 
wholly owing to the fact that there are wicked men in every 
community. Law and government are essential for Is More 
the good as well as for the bad. The ' ' general than 
welfare " is to be promoted, as well as the individual e P res s»ve. 
to be protected in his rights. There are many things to be done 
for the advancement of a nation, which could not be done without 
that combination and co-operation which are found only in gov- 
ernments. Science and art are to be fostered, education is to be 
encouraged, civilization to be advanced. Government has thus 
more to do than to restrain violence, to redress wrongs, and to 
punish the transgressor. There is government in heaven as well 
as on earth. 

It is sometimes said that government is a necessary evil * and 
that that government is best which governs least. The tendency 
of such language is to excite distrust and aversion, Is not a 
whereas governments should be respected, obeyed, Necessary 
and loved. A government founded in justice and 
administered with wisdom is always a good. Were government 
a necessary evil, it would be impossible to account for the exist- 
ence and strength of patriotism. The love of country, which is 
stronger than the love of kindred, or any other of the natural 
affections, is itself a proof that by nature we regard government 
as a good and not as an evil. There may be abuses, but 
men look forward to the time when they will be remedied. 
That is not the best government which governs least; though, 
other things being equal, that may be the best which makes the 
least show of governing. A wise ruler, whether in the family 



12 CIVIL GOVERNMENT. 

or the state, will never give needless prominence to the fact that 
he is a ruler, while an unwise ruler is disposed to make a display 
of his authority. In a good government, if the law is broken 
punishment must follow ; but the better the government, the less 
will be the tendency to break the law, and therefore the less the 
necessity of inflicting punishment. In a well-regulated school 
or family we see no manifestation of government, and apparently 
no government is needed; but this apparent absence of govern- 
ment is itself a proof of the excellent manner in which the gov- 
ernment is administered. 

Society is the natural state of man. His whole constitution 
shows that the intention of his Maker was that he should live in 
Society the society and under government. History testifies that 

Natural such has been the case from the beginning. In 
every age, and in every part of the earth, men have 
lived together in families, tribes, nations. They have been 
under some authority. Civil society is thus a universal fact. 
It is not the result of any agreement among men, but it is the 
natural working out of the human constitution. We are born 
into the nation as into the family. We do not make society, — 
we find it already existing. We are to obey the laws of the 
land because they are the laws, just as the child is to obey the 
law of the family. In neither case is any consent asked. 

It is not correct to say that civil society derives its authority 
through any compact or agreement, for then the power possessed 
civil Author- by society would be limited to that received from 
ity not from the individual men composing the society. But the 
any ompac . p 0wers Q f government include those which never 
belonged to the individual man, and therefore could never have 
been conferred by him upon society. Indeed, if there ever was 
a state of nature, as some have supposed, prior to the existence 
of civil society, when men lived without government, all pos- 
sessing equal rights, there could manifestly have been no right 
to govern, since no one could have had authority over another 
<vho was his equal. Men can not give what they do not possess, 



ORIGIN OF GOVERNMENT. 13 

and society could never obtain its right to govern from the indi- 
vidual citizens, since they never had such a right. 

Suppose, however, that this idea of a state of nature antece- 
dent to civil society were fact and not fiction, and that men 
lived without government, all possessing equal rights ; what is to 
be done with those who do not choose to give up their rights ? 
Plainly, the majority could have no authority to coerce the 
minority, and government would be an impossibility. Nor 
could one generation bind the one succeeding it ; and each new- 
born citizen would be rightfully independent of all governmental 
control until his individual rights should be voluntarily deposited 
in the common stock. 

The authority of civil society is not, then, derived from the 
individal citizens composing that society. They surrender 
nothing; society receives nothing. The fallacy in the theory 
of the "social compact," considered as an explanation of the 
origin of civil government, consists in confounding men as 
individuals with men as constituting a community. Wherever an 
independent community of men can be found, there is already 
civil society. There is no necessity for men to surrender a part 
of their rights in order to form a basis for authority; the au- 
thority exists without any such surrender. In society, man has 
all the rights which he could have in any state of nature, if any 
such state of nature out of society can be conceived of. As 
has already been said, society is the natural state of man. 

Hence, society is of divine origin. It is the intention of our 
Creator that we should live in society and under government, as 
it is that the race should be grouped into families, society 
and the child be subject to his parents. "The of Divine 
powers that be are ordained of God." "There is rigin# 

no power but of God." No individual man has any divine 
right to be a king ; but as civil government is of divine origin, 
society has a divine right to have rulers. Whoever, therefore, 
exercises legitimately any function of the civil ruler, whether 
he be king or president, legislator or judge, is exercising an 



14 



CIVIL GOVERNMENT. 



authority which is as divine in its origin as is the authority of 
a parent over his child. 

Civil authority is of divine origin, and it is lodged in the 
people. It is held by the nation as a whole, and not by the 
people as individuals. Society is not a congress of sovereigns. 
The power of society does not come from the individual mem- 
bers, but it belongs to the nation as such. The nation receives 
it from God, as a parent receives from God his right to govern 
his children. If we suppose that civil society possesses no au- 
thority except what has been imparted to it by the individual 
members, it follows, as we have already seen, that government 
can not be extended over those who have not surrendered their 
share of sovereignty. In such a case, majorities would have no 
right to control minorities. The supposition that civil govern- 
ment rests upon individual sovereignty would thus virtually de- 
stroy all governmental authority. 

It may be thought that the theory that the authority is in the 
community — the people as a whole — would lead to the other 
The Power extreme of a social despotism. But, although the 
of Society sovereignty is in the people collectively, they have 
no right to exercise any authority which God has 
not bestowed upon them. The parent has no right to govern 
his child except for the child's good ; neither has the nation any 
right to do any thing which is not for the good of the people. 
Each member of the community has inalienable rights, with 
which society has no right to interfere. It is not claimed that 
all rights come from the state; many do, but some do not. 
They belong to man as man. Humanly speaking, the sov- 
ereignty is in the nation — the people collectively. But this 
sovereignty is not absolute ; it must be exercised in subordina- 
tion to a higher sovereignty which recognizes the dignity and 
worth of the human being. 

A political community, independent of all others, framing its 
own constitution, and enacting its own laws without hinderance 
or question from any other community — in short, a body 



POLITICAL SOVEREIGNTY. 1 5 

politic, with no political superior, is a sovereign state or nation. 1 
France and England are sovereign nations; so is the United 
States. The sovereignty is in the state, as distinct whatisaSov- 
from the government of the state. The people col- ereign state 
lectively constitute the state ; the body of men who 
for the time being are invested by the state with civil authority 
constitute the government. The political society exists as an 
historical fact; thus existing, it frames for itself a constitution 
and adopts a government. The nation must exist as a separate 
political community before it can give itself a constitution. 
The constitution does not constitute the nation, but only the 
government of the nation. A constitution is an organic law, 
and presupposes a body politic possessing the authority to enact 
such a law. The constitution thus made by a nation already 
existing, prescribes the mode in which the nation determines 
that its govermental affairs shall be managed. It is a kind of 
letter of instructions to those who are to act as its ministers in 
carrying on the government. It is the organic law to which all 
other laws must be conformed. The constitution is made by the 
nation for the guidance of the government. The government 
can not change it, but the nation can. 

This distinction between the state or nation, on the one hand, 
and the government on the other, is of great importance. The 
sovereignty is in the nation. As sovereign, the The Distinc- 
nation may constitute the government according to t! ° n ^ tween 

J b ° the Nation 

its own judgment, and give it such form as it and the 
pleases. But the sovereignty is in the nation as Government- 
such, and not in the individual men composing it. The will of 
the nation is expressed in the constitution, which is the supreme 
law until the nation chooses to alter it ; and this alteration must 
be made in the mode which the nation has itself prescribed in 



1 The word state is used by writers on government to signify a separate political 
community; it is synonymous with nation. In the United States it is also applied 
to a member of the American Union. In this volume, when used in the former 
sense, it will be written state; when in the latter, State. 



l6 CIVIL GOVERNMENT. 

the same organic law. A large majority of the people may dis- 
approve of a' clause in the constitution, but their disapprobation 
passes for nothing until the obnoxious clause is constitutionally 
removed from the constitution. The same is true of the laws 
of a country. They are supposed to be valid until repealed. 
The constitution is made by the people, and the laws by the 
government ; but both are in force until changed or repealed by 
the power that enacted them. The people as a whole do not 
make the laws ; the government does not make the constitution. 
Some writers distinguish between the constitution of the 
nation and that of the government. Jameson calls the first a 
The constitution co?isidered as an objective fact. It is the 

Constitution "make-up of the commonwealth as a political 
organism; that special adjustment of instrumentali- 
ties, powers, and functions, by which its form and operation are 
determined." The second is a constitution considered as an in- 
strument of evidence. x Brownson says, ' ' The constitution is 
two-fold; the constitution of the state or nation, and the consti- 
tution of the government. The constitution of the government 
is, or is held to be, the work of the nation itself; the constitu- 
tion of the state, or of the people of the state, is, in its origin 
at least, providential, given by God himself, operating through 
historical events or natural causes. The one originates in law, 
the other in historical fact." 2 

The constitution of the nation is unwritten. The constitution 
of the government may be written or unwritten. The constitu- 
tion of the nation is its character — what it is, at any epoch. 
The constitution of the government is what the nation chooses 
to make it. As the nation changes, its constitution changes 
accordingly; and the nation should change its governmental 
constitution from time to time, to make it correspond with the 
real constitution. The American nation was in existence a 
number of years before it formed a written governmental con- 



1 Jameson's Constitutional Convention, page 66. 

2 Brownson's American Republic, page 138. 



NATURE OF GOVERNMENT. 1 7 

stitution. The present constitution, which went into operation 
in 1789, has received slight modifications at different times, and 
will continue to be modified in future years, as the character 
of the nation itself is changed. We shall see, when the mode 
of amending the Constitution comes to be considered, that most 
ample provision has been made against hasty alterations in that 
instrument. Indeed, there is more reason to apprehend that 
needed changes will be delayed too long than that those which 
are unnecessary will be introduced. 

There are various forms of government, differing from each 
other more or less widely. In a Monarchy, the ruler is a single 
person. An Aristocracy is a form of government Forms 
in which the authority is held by a few. In a of 

Democracy, the power is exercised by the people °vernment. 
themselves. But most existing governments combine two or 
more of these forms. 

In a Monarchy, the whole authority is not necessarily in a 
single person. Most of the governments of Europe are called 
monarchies ; but in some of them the king has less 
power than the President of the United States. onarc y ' 

An absolute monarchy is a despotism. The monarch governs 
according to his own will and caprice, and not according to 
established laws. Such a government is clearly illegitimate. 
It is a government of force. In a limited monarchy, the king, 
prince, or emperor, or whatever he may be called, though 
nominally the sovereign, wields a power more or less re- 
stricted. Great Britain and all the provinces subject to 
it are called Her Majesty's Dominions. The government is 
carried on in the sovereign's name. The army and navy are 
called Her Majesty's troops and ships. But at the same time 
her real power is small. The laws are enacted by Parliament, 
and they are administered by the ministers, who are called Her 
Majesty's government. Parliament is composed of two houses : 
the House of Lords, which is chiefly hereditary, and the House 

of Commons, which is elective. 
a. c— 2. 



A Republic is properly a ciJKiimiwhwi k ■ilili Tlic donnam be- 

Ann :: nt m~:i rnie: liizz id tit ii.:: :: ±r i::.e: I: _.- i 

_._... iiTermti: :i-~n:i nt iinirirr if tinnse! :j 

nt rtire^tmzvt: :: lit pt-ii.t _: men :::n 

i Am.vm n ±i= ±.1: n ::.: -L7:z: nt p:— f: .5 titrmei "17 

nt pe:_nt ;::::.:■:.' e: mm _i lit :':mt: :.:.: pe:;A tA:: 

::;::■::::::; :: :.:: ::: ±tn A nnt Ammm :.n e:m 

nm li 1 mm :em:m m.m ill nt pemt :;ii 

net: 111 7i:..: li— = _-_ :e; im: 1117 i-t it~ > 

:::: :: m: nrmi If mirim _: miTeriil 1 nt mm irt 

eAne; :; ::.: mmt pemt lit n mi.mi: .1 1 Ammrim 

rtni:m A. prcpirmi 1: smmit :« mmme 111 ±t - — - 

le: A ~ ::m i_i__i.riri ±.t 11 ::n.:i: i-ennef m.f Am- 

aatic and move aristocratic. 

:ii:iii i' : " ":::.i::i irt :: nnt e:i:: rt; iimm 
1* i: sint m: 11 : :_i: : ':... m A: m Ai;,;le:i. I1.1t 
tnptri: : :' nt rrtim litA 1.15 :mt :y mm:i. 
Tlit pen A ::' Frime 111.it im tnptri: "it rmir 
' : '~- Tit 11:1mm ::' Emlim r_A :r litre inn-;- mi: 11 1 
ntnle- A lit AA m : :' A:m i:n nti: :em it v-_mt : f 
their ibdrtii; font the members of the House of Commons are 
rfp rtrd . The government: is thus at the same time monarch- 
'-'■-- : --'^ ■'-■-'--- ----- re; Amm 1 n n :i: re: 1:1m ;.ir: ;: 15 

-- :: - ^"-?::'"in: 1111 in::::.: 1: 1 lirit : :n A ne ;e:;A 
do not possess the xagfat of snffiage. Macanlaj cans me 
-nnn mptrm rtiiiinn nnine 1:1.7: "17 in reim 

Char own government as peaahar. John Qmncy Adams 
speaks of it as "a c om|flir atlr d imarhinr. It is an anomaly in 

world. It b that which disan- 

-~ :Tit: mim mmi: 11; 

■in.vi :,m Tit Antrim: 



- : - ? —---= -" : - : -: :rn: ._. r .t n : 17 - _--. : : : : n-m n:r_ .it 
Antrim: mm :: inrtmnti: 111 ;.t .n;, : : mn.nn: mi 
" :r - T :: " ' : --- - --- '-■- i--tmntn lemmei 17 -;:::.: n 

T " - : - -J --'■-- mmmm A:?::i; intv :r _lv :': n in :•:' 



OUR GOVERNMENT PECULIAR. 1 9 

government: Monarchy, Aristocracy, Democracy, and Mixed 
Governments. The American form is none of these, nor any 
combination of them. It is original, a new contribution to 
political science, and seeks to attain the end of all wise and just 
government by means unknown or forbidden to the ancients, 
and which have been but imperfectly comprehended even by 
American political writers themselves." 1 

Our government is not a simple, or consolidated republic on 
the one hand, nor, on the other, is it a league of States. Many 
seem to suppose that there is no middle ground Nota 

between these two; that the denial of the one is Consolidated 
equivalent to the affirmation of the other. The a^eague'of 
American people constitute a Nation, with a repub- states, 
lican government. The Nation has a Constitution in which the 
character of the government is clearly delineated. This Con- 
stitution is the supreme law of the land. But the country is 
divided into divisions, called States, each of which has a consti- 
tution. The people of the whole Nation have made the general 
Constitution, while the people of each State have made a con- 
stitution for that political division. The National Constitution is 
operative throughout the whole domain ; it is binding on all the 
people. The constitution of a State is confined in its operation 
to the State limits; beyond them it has no force. But within 
the State it is the organic law, whose provisions, unless conflict- 
ing with the National Constitution or the laws enacted under it, 
must be carried out. Were the government a league of States, 
there could be no supreme National government; were the 
Nation a consolidated republic, there could be no State constitu- 
tions. Unquestionably, the American people are a single 
people, a Nation in the same sense, and just as truly, as the 
people of France. But at the same time the National Constitu- 
tion every-where recognizes the existence of the States, with 
their separate constitutions and their various departments. 



1 Brownson, page 5. 



zz zv-".~- :-:vu.vviv:, 

Were oar government a simple republic, we should have no 

laws except those enacted at Washington. In that case, a 

Conntraad coaB!t ¥ would bear to a State the same relation that 

state Mot a State does to the Nation, as is sometimes affirmed 

uu« state to ^ ^ case now _ 3,,^ fj| e statement is incorrect. 

a:.: >i:::r.. 

A county can do nothing politically which it is not 
authorized by the State to do. A State can do any thing polit- 
ically which does not contravene a law or the Constitution of 
the Nation. The people of a county, as such, have no constitu- 
tion, and have no power to form one. The people of a State 
have a constitution, and may alter it at pleasure, provided its 
:.::-• :si :r.E irt ::. hirrr. :ny ~i:h :ht N = rl:r.il .i~s mi Cms" ra- 
tion. The county originates nothing; all its power comes to it 
from a political body above it. The State originates every 
thing; its power coming directly from the people themselves. 

But although the States have constitutions, and derive their 

governmental authority from the people, this does not make 

The Nation mem sovereign states, or the general government a 

smiths inert : mftitri :y. 7>. t Arr.tni.ir. ::::t irt :nt 
^J^f^D™ people, yet their government is not a consolidated 
one. They exist in States, yet their government is 
not a confederated one. From the day when the Declaration of 
American Independence was made, they have existed as a Nation, 
yet grouped into States. The Nation and the thirteen original 
States began their existence together. Neither preceded, neither 
followed. The American people "have not, as an independent 
sovereign people, either established their union, or distributed 
ihtmst-vtE ::.:: iisrir.:: = r.i n::;i^v in it:, tnitni ^:::t ; Tnt 
union and the distribution, the unity and the distinction, are 
both original in their Constitution, and they were born United 
States as much and as truly so as die son of a citizen is born a 
citizen, or as every one born at all is born a member of 
society, the family, the tribe, or the nation. The Union and 
the States were born together, are inseparable in their Consti- 
tution, have lived and grown together; and no serious attempt 






THE POWER OF GOVERNMENT DIVIDED. 21 

till the late secession movement has been made to separate 
them." 1 

' ' Say the people of the United States are one people, in all 
respects, and under a government which is neither a consoli- 
dated nor a confederated government, nor yet a 

- , . . . . , , The Powers 

mixture of the two, but one m which the powers of 

of government are divided between a general gov- Government 
ernment and particular governments, each emanat- 
ing from the same source, and you will have th*e simple fact." 2 
"Strictly speaking, the government is one, and its powers only 
are divided and exercised by two sets of agents or ministries." 3 
To the same purpose Jameson: "And here I may remark that 
the Constitution of the United States is a part of the constitu- 
tion of each State, whether referred to in it or not, and that 
the constitutions of all the States form a part of the Constitu- 
tion of the United States. An aggregation of all these consti- 
tutional instruments would be precisely the same in principle 
as a single constitution, which, framed by the people of the 
Union, should define the powers of the general government, 
and then by specific provisions erect the separate government 
of the States, with all their existing attributions and limitations 
of power." 4 

No other nation has such a distribution of the powers of 
government. Foreigners almost universally fail to comprehend 
it, and many of our own people find it a perplex- Qne 

ing subject. The general government and the Government 
particular governments together constitute the gov- s in h Tw ° 
ernment of the United States. The former is 
general, as its care extends to the whole Union; the govern- 
ments of the States are particular, as limited to the local inter- 
ests of the individual States. The two in combination form 
the one supreme National government, or government of the 
United States. It is one government, exercising its powers in 



1 Erownson, page 222. 2 Ibid, page 231. 3 Ibid, page 250. 4 Jameson, page 87. 



22 CIVIL GOVERNMENT. 

two different spheres. The authority comes from the same 
people, the people of the United States, in whom is the whole 
sovereignty. As stated above by Judge Jameson, the general 
Constitution and the constitutions of the States might be con- 
sidered as one great instrument. There are, first, those 
articles which are concerned with the interests of the whole, 
and then, in succession, those which relate to the particular 
and local interests of the several States. 

Or we may say that the people of each State have two con- 
stitutions; one local and particular, the other general. The 

latter has been adopted by them in conjunction 

of each * w ith tne people of the rest of the Nation ; the 

state have former they have adopted by themselves, yet tak- 

stiTution"" m S care th at none of its provisions are in conflict 

with those of the general Constitution. The local 
constitution is no more the constitution of a particular State 
than the general Constitution is. The people of New York, 
by their ratification of the general Constitution, and the people 
of Ohio, by their adoption of it at their entrance into the 
Union, have made it their own as truly as those constitutions 
for the adoption of which they alone voted. Every provision 
of the Constitution of the United States is to be regarded as 
expressing the will of the people of Ohio as much as any pro- 
vision of the constitution of that State. There is, thus, no 
legitimate place for conflict between the general government 
and the governments of the States, because they have all 
been formed by the same authority — the people of the Nation. 
It was never intended that these should be arrayed against 
each other like political parties, or serve as " checks and 
balances," after the example of some other governments. 



CHAPTER II. 

The Colonial Governments — Royal, Proprietary, and Charter — 
The Causes of the Revolution — The Continental Congress — 
The Declaration of Independence. 

THE Colonies which declared their independence of Great 
Britain in 1776, and formed a new nation, known from 
that time as The United States of America, were The 

thirteen in number ; viz. , Massachusetts, New Hamp- Thirteen 
shire, Connecticut, Rhode Island, New York, 
New Jersey, Pennsylvania, Delaware, Maryland, Virginia, 
North Carolina, South Carolina, and Georgia. These had 
been settled at various times, from 1607, when the settlement 
of Virginia was commenced at Jamestown, to 1732, when the 
Colony of Georgia was established. They were not all settled 
as so many distinct colonies, but various changes had taken 
place among them. Thus, the Colony of Massachusetts, as it 
existed at the beginning of the War of the American Revolu- 
tion, embraced what constituted originally three distinct col- 
onies : that of Massachusetts Bay, that of New Plymouth, and 
the Province of Maine. 1 The Colony of New Haven had 
been merged in 1665 in that of Connecticut. The Carolinas, 
on the other hand, had been divided; and what was at first 
a single colony, under the name of Carolina, was made two in 
1732, and the divisions were called by the present names of 
North Carolina and South Carolina. 



1 These were incorporated into one by a charter granted by William and Mary in 
1691, under the name of the Province of the Massachusetts Bay in New England. 

(23) 



24 CIVIL GOVERNMENT. 

All the lands were held by titles coming from the British 

crown, which claimed the country by the right of discovery. 1 

Near the close of the fifteenth century, King 

Title from Henry the Seventh had sent out John Cabot on a 

Discovery. . 

voyage of exploration, who discovered the islands 
of Newfoundland and St. John, and sailed along the coast 
from the fifty-sixth to the thirty-eighth degree of north latitude. 
All this territory, in consequence, was claimed to belong to 
Great Britain, and by that power grants were made from time 
to time to companies and to individual proprietors. Under 
the charters and patents thus granted, settlements were made 
and local governments established. The colonies all acknowl- 
edged allegiance to the mother country, while they had no 
direct political connection with one another. 

The colonial governments have been described by most 
writers, following the division given by Blackstone, as of three 
The Three kinds : Provincial, Proprietary, and Charter. The 
Colonial Provincial governments, which were often called 
overnmen s. R y a ^ fa^ a governor and council appointed by 
the Crown, and a legislature whose upper house was the 
council, and whose lower was elected by the people. The 
Provincial governor had a negative upon all the proceedings 
or of the legislature, and could also prorogue or dis- 

Roya1, solve them at pleasure. Laws might be enacted 
not repugnant to the laws of England, and subject to the rati- 
fication of the Crown. The governor, with the advice and 
consent of the council, could establish courts and appoint 
judges and other officers. 

In the Proprietary governments, the proprietors appointed 
the governors, and it was under their authority that legislative 



1 This right was held among the European nations to be a sufficient foundation on 
which to rest their respective claims to the American continent. The title from dis- 
covery was good against other nations, but it did not of itself extinguish the claim of 
the Indian occupant. It was held, however, that discovery by a nation gave exclusive 
right to extinguish the Indian title either by purchase or conquest. The government 
of the United States has uniformly acted on the same rule. 



THE COLONIAL GOVERNMENTS. 25 

assemblies were convened. While the proprietors thus exer- 
cised those prerogatives which in the Royal gov- 
ernments were exercised by the Crown, the sov- 
ereignty of the mother country was, nevertheless, to be strictly 
maintained. 

In the Charter governments, the people had much more 
political power. Their relation to England was more like 
that of the citizens of one of our States to the 

Charter. 

Nation, while that of the people in the Royal 
governments was more like that of the people in one of our 
Territories. The charter granted to Massachusetts Massacnu- 
by Charles the First gave power to elect annually setts * 
a governor, deputy-governor, and eighteen assistants. Four 
"great and general courts" were to be held every year, to 
consist of the governor or deputy-governor, the assistants, and 
the freemen. These courts were authorized to appoint such 
officers as they should think proper, and also to make such 
laws and ordinances as to them should seem meet, provided 
they were not contrary to the laws of England. After the 
charter granted in 1691 the governor was appointed by the 
Crown. 1 

Connecticut and Rhode Island formed governments for 
themselves, the provisions of which were afterward secured 
to them in charters granted by Charles the Second Connecticut 
soon after his restoration to the throne. The and 

people of these colonies, by the express words of s an ' 

their charters, were entitled to the privileges of natural-born 
subjects, and invested with all the powers of government, — 
legislative, executive, and judicial. The only limitation to 
their legislative power was that their laws should not be con- 
trary to those of England. 2 

' i The king and parliament claimed the right to alter and 
revoke these charters at pleasure; but the colonists, on the 



1 Pitkin's Pol. and Civ. Hist. U. S., I. pages 36, 120. 

2 Pitkin, I. page 54. 



A. C— 3 



26 CITIL GOVERNMENT. 

other hand, denied this right, and claimed them to be solemn 
compacts between them and the Crown, irrevocable unless 
forfeited b) 7 some act of the grantees. Thi a continual 

source of contention between the parent country and the char- 
ter colonies, and was one of the causes which finally produced 
a separation between the two countries."' } 

The people of these two colonies were indeed so well satis- 
fied with their charters, granted in 1662 and 1663, that they 
continued to live under them long after they had ceased to be 
colonies, and had become States of the American Union. 
Connecticut did not form a State Constitution till 181 8, nor 
Rhode Island till 1842. 

The colonies which had chartf- .-rnments were : : we 

have seen, Massachusetts. Rhode Island, and Connecticut 

The Royal, or Provincial, governments were those : 
Hampshire. New York. Virginia, and Georgia ; to which were 
added New Jersey in 1702. and the Carolinas in 1729, all 
which had previously been under Proprietary governmei. 

The colonies that continued under Proprietar : 
till the Revolution were Pennsjivania, Maryland, and Dela- 
ware. 

It has been seen that each of the colonies exercised some of 
the powers of government, while none claimed to be independ- 
ent of England. For internal regulations, the colonial If 
latures regarded themselves as having full authoritv. "While 
having no direct political connection with each other, they 
acknowledged a common allegiance to the Crown. The ert 
fellow subjects, and in marry respects one people. Every col- 
onist could become an inhabitant of any colony. They en- 
joyed the rights and privileges of British subjects, and claimed 
a total exemption from all taxation not imposed by their own 
representatives. In the Plymouth Colony, for the first twenty 
years, all the freemen met in ' ' general court " and participated 



1 Pitkin, I. p^ r 



THE COLONIAL GOVERNMENTS. 27 

in making laws. In 1639, a house of representatives was sub- 
stituted for the whole body of freemen. In Virginia, a general 
assembly, composed of representatives from the various planta- 
tions, was called in 1619. This was the first representative 
legislature that ever sat in America. Eventually, all the 
colonies elected one or both of the branches of their provincial 
legislatures. 

The first union among any of the colonies was formed in 
1643. It embraced Massachusetts, Plymouth, Connecticut, 
and New Haven, under the name of "The United 
Colonies of New England." Their object was to f x&b. 01 
defend themselves against the Indians, and also to 
resist the claims and encroachments of the Dutch. 1 This 
union continued till 1686. 

In June, 1754, commissioners from seven of the colonies, 
viz., Massachusetts, New Hampshire, Rhode Island, Connecti- 
cut, New York, Pennsylvania, and Maryland, met 
in Albany at the request of the lords commis- union P °f*754. 
sioners for trade. The objects were to "confirm 
and establish the ancient friendship of the Five Nations," and 
to consider whether the colonies would "enter into articles of 
union and confederation with each other for the mutual defence 
of His Majesty's subjects and interests in North America as 
well in time of peace as war." ? With reference to this end the 
British Secretary of State had suggested that a plan of union 
among the colonies should be formed. At this meeting, after 
the adoption of a resolution that a union of the colonies was 
absolutely necessary for their preservation, a committee was 
appointed, consisting of one member from each colony, to 
report a plan of union. One proposed by Dr. Franklin, who 
was a member of the committee, was finally adopted by the 
Convention. 



1 Pitkin, I. page 50. 

2 Frothingham's Rise of the Republic, page 132. 



28 CIVIL GOVERNMENT. 

It provided for a general government of all the American 

Colonies, to consist of a president-general to be appointed by 

the Crown, and a grand council of delegates, to 

Plan o ^ choggn ever y three years by the colonial assem- 

Government. j j j 

blies. The president and council were to regulate 
all affairs with the Indians, to make new settlements on lands 
purchased of the Indians, and govern such settlements, to raise 
soldiers, build forts, and equip vessels for guarding the coast 
and protecting the trade. For these purposes, they were to 
make laws and levy such duties and taxes as they might deem 
just. The president was to have a negative on all laws and 
acts of the council, and to see that the laws were executed. 

This plan was adopted by the Convention, all the delegates 

voting for it except those from Connecticut. But it never went 

Rejected by i nto operation, having failed to obtain the approval 

Both either of the colonies or the mother country. 

"It had the singular fate of being rejected in 
England because it left too much power in the hands of the 
colonists, and it was disapproved in America because it trans- 
ferred too much power into the hands of the Crown." 1 

In 1765, a Congress of delegates was held at New York. 
This was in consequence of the passage of the Stamp Act by 

the British Parliament in March of the same year. 
on I ^ ss That body had determined to raise a revenue from 

the colonies by taxation, although the colonists 
most vehemently protested against it. The passage of the 
Stamp Act, which required all legal documents to be on 
stamped paper furnished by the British government, excited 
universal alarm in the colonies. The Colonial Assembly of 
Virginia, at a session held soon after the news reached America, 
adopted resolutions of the most decided character. These res-, 
olutions were moved and supported by the celebrated Patrick 
Henry. When, in the heat of debate, he exclaimed, " Cassar 



1 Pitkin, I. page 145. 



THE CAUSES OF THE REVOLUTION. 29 

had his Brutus, Charles I. his Cromwell, and George III " — he 
was interrupted by the Speaker and others with the cry of 
"treason." Pausing a moment, and fixing his eye on the 
Speaker, he added — "may profit by their example; if this be 
treason, make the most of it." 

Meanwhile, Massachusetts had voted that it was desirable 
that a Congress of delegates from all the colonies should be 
held. Accordingly, Massachusetts, Rhode Island, ^ u 

o J > t Massacnu- 

Connecticut, New York, New Jersey, Pennsyl- setts invited 
vania, Delaware, Maryland, and South Carolina 
elected commissioners, who met at New York, as stated above. 
New Hampshire approved of the Congress, but from the 
peculiar situation of the colony it was judged not prudent to 
send delegates. Virginia, North Carolina, and Georgia were 
not represented because the governors of those colonies refused 
to call special assemblies for the appointment of delegates. 

"This was the first general meeting of the colonies for the 
purpose of considering their rights and privileges, and obtain- 
ing a redress for the violation of them on the part 
of the parent country." 1 They adopted a decla- A f tionofthe 

r J j f Congress. 

ration of rights and grievances, which asserted the 
claim of the colonists to all the inherent rights and liberties of 
subjects within the kingdom of Great Britain; "that it is in- 
separably essential to the freedom of a people, and the un- 
doubted right of Englishmen, that no taxes be imposed on 
them but with their own consent, given personally or by their 
representatives." 

The Stamp Act was subsequently repealed, but other taxes 
and duties were imposed quite as obnoxious to the colonies. 
Their efforts to obtain redress being unsuccessful, it became 
obvious that they must form a closer union for their own pro- 
tection. 2 In 1774, Massachusetts recommended the assembling 

1 Pitkin, I. page 180. 

* The Stamp Act was repealed March 18, 1766. Other taxes were imposed June 29, 
1767. The " Boston Massacre '' occurred March 5, 1770. Tea destroyed, December, 
1773. Boston port bill passed, March 31, 1774 



30 CIVIL GOVERNMENT. 

of a Continental Congress to deliberate upon the state of 
public affairs. The recommendation was favorably received, 
and on the 5th of September a Congress of delegates from 
twelve colonies assembled at Philadelphia. Of these, some 
The Conti- were appointed by the popular branch of the 
nentai Con- colonial assembly, while others were elected by 
gress o 1774. conventions of the people. Georgia, the youngest 
of the colonies, was not represented. This is known as ' ' The 
First Continental Congress." 

Among the distinguished members of this Congress were 
John Adams and Samuel Adams of Massachusetts, Roger 
Sherman of Connecticut, John Jay of New York, Peyton Ran- 
dolph, Richard H. Lee, Patrick Henry, and George Washing- 
ton of Virginia. Peyton Randolph was chosen president. 
The first resolution adopted was, ''That in determining ques- 
tions in this Congress each colony or province shall have one 
vote ; the Congress not being possessed of, or at present able to 
procure, proper materials for ascertaining the importance of 
each colony." This rule of equal suffrage, established because 
the Congress did not possess the information requisite for estab- 
lishing a more equitable one, remained in force until the 
present Constitution went into operation in 1789. 

The addresses to the King, to the people of Great Britain, 
to the inhabitants of the colonies they represented, and to the 
The work inhabitants of the Province of Quebec, were all 
of the drawn up with great ability, and were spoken of 
ongress. ^ v Lord Chatham in terms of the highest admira- 
tion. After recommending that another Congress should be 
held on the 10th of May following, provided that a redress of 
grievances was not previously obtained, this Congress adjourned 
on the 26th of October. That the measures adopted, if sup- 
ported by the American people, would produce a redress of 
grievances, was the conviction of a majority of the members 
of the Congress. 1 



1 Pitkin, I. page 301. 



THE CONTINENTAL CONGRESS. 3 1 

But in this they were disappointed. The breach between 
England and the colonies became wider. Delegates were, 
therefore, appointed to meet in Philadelphia, May The Second 
ioth, 1775, agreeably to the recommendation of continental 
the Congress of 1774. Some of these were chosen Congress, 
by conventions of the people, and some by the colonial legis- 
latures, as in the previous Congress. With scarcely an excep- 
tion, the delegates of 1774 were re-appointed in 1775. As 
before, twelve colonies were represented. A delegate also was 
present from a single parish in Georgia, and in July a conven- 
tion was held in that colony, which voted to accede to the 
general association, and appointed delegates to the Congress. 

This Second Continental Congress continued its session, with 
occasional adjournments, till March, 1781; there were then 
yearly sessions till 1789. Before they assembled on Hostilities 
the ioth of May, hostilities had been commenced in Massacnu- 
by the British troops under General Gage. One 
of the first items of business brought before the body was a 
letter from the provincial congress of Massachusetts, giving an 
account of the battles of Lexington and Concord, April 19th, 
with the action of that colony in relation thereto, and request- 
ing the direction and assistance of the Congress. In this letter 
is the following suggestion: "With the greatest deference, we 
beg leave to suggest that a powerful army on the side of 
America hath been considered by this Congress as the only 
means left to stem the rapid progress of a tyrannical ministry." 1 
The Congress at once resolved itself into a committee of the 
whole to take into consideration the state of America, and 
referred this letter from Massachusetts to that committee. 

Hostilities having already commenced, the necessities of the 
case compelled this Continental Congress to take measures to 
put the country into a state of defense, and soon they assumed 
a virtual control over the military operations of all the colonies. 



1 Jour. Cont. Cong., I. page 77. 



32 CIVIL GOVERNMENT. 

An army was organized, and on the 15th of June, George 
Washington, a delegate from Virginia, was unanimously elected 
Washington general of all the forces. His commission styled 
Appointed him the General and Commander-in-Chief of the 
Army of the United Colonies. This was the first 
occasion on which the style, "The United Colonies," was 
adopted ; it continued to be used till the Declaration of Inde- 
pendence substituted the name, "The United States." 

The action of Congress in providing for raising an army and 
appointing a commander-in-chief was in accordance with the 
Government general expectation of the colonies. Congress 
Assumed by thus assumed the defense of the country. They 
created a continental currency by issuing bills of 
credit. They established a treasury department, and organized 
a general post-ornce, Dr. Benjamin Franklin being the Post- 
master-General. In answer to the applications from various 
colonies for advice as to their local governments, Congress 
recommended that such forms of government be established as 
would best secure good order during the continuance of the 
dispute between Great Britain and the colonies. This advice 
manifestly contemplated the establishment of provisional gov- 
ernments only. This was in November and December, 1775. 
But the question of separation began to be discussed. On 
the 2 2d of April the convention of North Carolina empowered 
The Question their delegates in Congress "to concur with those 
of in the other colonies in declaring independency, 

epara ion. ^his, j t j s believed, was the first direct public act 
of any colonial assembly or convention in favor of the meas- 
ure." 1 On the 15th of May the convention of Virginia went 
further, and unanimously instructed their delegates in Congress 
"to propose to that respectable body to declare the United 
Colonies free and independent States, absolved from all alle- 
giance or dependence upon the Crown or parliament of Great 



1 Pitkin, I. page 360. 



INDEPENDENCE PROPOSED. 33 

Britain." In accordance with these instructions, Richard 
Henry Lee, one of the delegates from Virginia, submitted a 
resolution declaring "that the United Colonies are The R eso _ 
and ought to be free and independent States ; that lution of 
they are absolved from all allegiance to the British J une 7- 
crown; and that all political connection between them and the 
State of Great Britain is, and ought to be, totally dissolved." 
This was on the 7th of June. On the next day it was debated 
in committee of the whole. 

"No question of greater magnitude," says Mr. Pitkin, "was 
ever presented to the deliberation of a deliberative body, or 
debated with more energy, eloquence, and ability." 1 

The resolution was discussed again in committee of the 
whole on the 10th, and adopted. The committee recom- 
mended that the farther consideration of the reso- committee on 
lution be postponed till the 1st of July, but mean- Declaration of 
while that a committee be appointed to draft a n epen 
declaration of independence. This committee consisted of 
Thomas Jefferson of Virginia, John Adams of Massachusetts, 
Benjamin Franklin of Pennsylvania, Roger Sherman of Con- 
necticut, and Robert R. Livingston of New York. 

The postponement was immediately followed by proceedings 
in the colonies, most of which either instructed or authorized 
their delegates in Congress to vote for the resolu- 
tion of independence ; and on the 2d day of July Xdopted" 
that resolution, which had before been agreed to July 2, and 
in committee of the whole, was adopted by Con- e j U * y a 4 . 10 
gress itself. The committee who had been in- 
structed to prepare the declaration, had reported on the 28th 
of June, and on the 4th day of July that paper was adopted. 

After citing reasons for the dissolution of the political bands 
which had connected them with Great Britain, the Declaration 
concludes: "We, therefore, the Representatives of the United 



1 Pitkin, I. page 362. 



34 CIVIL GOVERNMENT. 

States of America, in General Congress assembled, ap- 
pealing to the Supreme Judge of the world for the rectitude 
The Language °f our intentions, do, in the name and by the 
of the authority of the good people of these colonies, 
Declaration. so i emn ly publish and declare that these United 
Colonies are, and of right ought to be, Free and Inde- 
pendent States." 

This was the beginning of the Nation. Whether it could 
maintain its independence, thus boldly declared, was to be de- 
cided by the sword. Should the people fail in the bloody 
struggle, they would never be known as a Nation upon the 
page of history. Should they succeed, their National existence 
would date from the Fourth of July, 1776. 

This Declaration of Independence was not the work of 
States, for no States existed. It was the people of the thirteen 
United Colonies who had, through their representatives, de- 
clared themselves absolved from their allegiance to Great 
Britain. The Nation and the States were born on the same 
day. Hitherto, there had been colonies and the mother coun- 
try, to which all the colonists acknowledged allegiance. Now, 
the sovereignty was no longer in Great Britain, but in the 
people themselves, who claimed to be a separate political com- 
munity ; and the individual colonies had become States. From 
that day the Nation itself, through Congress, exercised all the 
functions of government. There was a real government, 
though as yet no written constitution ; and the relations of the 
States to the General Government were in substance the same 
as they are now. 



CHAPTER III. 

The Articles of Confederation — Their Failure — The Convention 
to Form a Constitution. 

SOON after the Declaration of Independence was made, 
a committee, previously appointed, reported a draft of the 
Articles of Confederation. These were debated Articles 
from time to time, and, after several modifications, of con- 
were finally agreed to by Congress, November 15th, e eratlon - 
1777. They were to become binding when ratified by all the 
States. Ten States ratified them in July, 1778; New Jersey, 
November 26th, and Delaware, February 2 2d, 1779. Maryland 
withheld her approval till March 1st, 1781. This was nearly 
five years after the Declaration of Independence. During this 
time the war had been carried on and all the affairs of the 
Nation had been conducted by Congress. A treaty had been 
made between France and the United States, which was con- 
cluded at Paris, February 6th, 1778, and ratified by Congress 
May 4th of that year. The surrender of Cornwallis, which 
virtually closed the war, took place on the 17th of October, 
1 78 1, about six months after the adoption of the Articles of 
Confederation. 

These Articles were the result of the first effort to form a 
central government. Such a government had indeed existed 
from the time of the Declaration of Independence, jealousy of the 
but it was revolutionary, and Congress had gov- states, 
erned by the common consent of the people. In attempting to 
draw the line between the powers to be exercised by the States 
on the one hand and the General Government on the other, 

(35) 



36 CIVIL GOVERNMENT. 

State influence was strongly predominant. The colonies had 
been independent of each other, and the encroachments of 
Great Britain had led to the revolution. A central government 
at home would in their view take the place of that of the 
mother country, and it was not strange that their jealousy of 
Endand should in some measure be transferred to their own 
General Government. Little power was confided to Congress, 
and this related principally to war. 

The Articles were as erroneous in theory as they were in- 
efficient in practice. The Declaration of , Independence was 
made in the name of the people of the United States. The first 
sentence alludes to them as ' ' one people " that had found it 
necessary to dissolve the political bands which had connected 
them with another people, and to assume among the powers of 
the earth the separate and equal station to which they were en- 
titled. The Constitution speaks the same language : ' ' We, the 
People of the United States, do ordain and establish this Con- 
stitution for the United States of America." But the Articles 
of Confederation do not purport to come from the people. 
They were the work of the States. The instrument is styled 
" Articles of Confederation and Perpetual Union between the 
States of New Hampshire, Massachusetts Bay," etc. It was 
drawn up and adopted by Congress, and sent to the States for 
ratification. 

The Articles provided for one House of Congress, to be 
composed of delegates appointed annually by the several States, 
Their as each should direct, no State to be represented 
Provisions, ^v more than seven or less than two, and no person 
being capable of serving as a delegate more than three years in 
six. Each State was to pay its own delegates, and could recall 
them at pleasure. The voting was to be by States. 

Congress was invested with power as to war and peace, 
treaties and alliances. Congress could decide, on appeal, dis- 
putes between States, could regulate the alloy and value of 
money, had charge of all postal matters, etc. , etc. ; but no im- 



THE ARTICLES OF CONFEDERATION. 37 

portant action could be taken without a vote of nine States — 
two thirds of the whole. 

No Executive Department was provided, and no Judiciary. 
Taxes were to be apportioned among the States, but Congress 
had no authority to levy them. Commerce was in the control 
of the States. Each State could lay duties and imposts. Con- 
gress had no power to enforce its own measures. 

"In the very modes of its operation there was a monstrous 
defect, which distorted the whole system from the true propor- 
tions and character of a government. It gave to 
the Confederation the power of contracting debts, ^^ation t0 
and at the same time withheld the power of paying 
them. It created a corporate body, formed by the Union and 
known as the United States, and gave to it the faculty of bor- 
rowing money and incurring other obligations. It provided 
the mode in which its treasury should be supplied for the reim- 
bursement of the public credit. But over the sources of that 
supply, it gave the government contracting the debt no power 
whatever. Thirteen independent legislatures granted or with- 
held the means which were to enable the General Government 
to pay the debts which the general Constitution had enabled it 
to contract, according to their own convenience or their own 
views and feelings as to the purposes for which those debts had 
been incurred." l 

"By this political compact, the United States in Congress 
have exclusive power for the following purposes, without being 
able to execute one of them. They may make and conclude 
treaties, but can only recommend the observance of them. 
They may appoint ambassadors, but can not defray even the 
expenses of their tables. They may borrow money in their 
own name on the faith of the Union, but can not pay a dollar. 
They may coin money, but can not purchase an ounce of 
bullion. They may make war, and determine what number of 



1 Curtis's History of the Constitution, I. page 181. 



38 CIVIL GOVERNMENT. 

troops are necessary, but can not raise a single soldier. In 
short, they ?nay deda?-e every thing bid do nothing." 1 

As each State paid its own delegates in Congress, the smaller 
the number the less the expense. Oftentimes a State would 
have no representative. The Treaty of Peace, signed Septem- 
ber 3d, 1783, could not be ratified till January 14th, for want 
of representatives, and then there were but twenty-three mem- 
bers present. In April of that year there were present twenty- 
five members from eleven States, nine being represented by 
two each. Three members, therefore — one eighth of the 
whole — could negative any important measure. 

The Treaty of Peace was made by the United States with 
Great Britain, but Congress could not enforce its provisions. 
Various articles were constantly violated by the States, and 
Congress could not prevent it. Great Britain declared her 
readiness to carry the treaty into effect when the United States 
would do the same. 

As the General Government could not carry out its own 
treaties with foreign powers because of the refusal of the States, 
so it could not protect a State against insurrection or rebellion. 
The outbreak in Massachusetts in 1786, known as Shays's In- 
surrection, which embraced a fifth of the inhabitants in several 
of the most populous counties, caused great alarm through the 
country. Armed men surrounded the court-houses, and finally 
the insurgents were embodied in arms against the Government. 
The National Government was powerless to aid the State ; the 
Articles of Confederation gave Congress no authority in such a 
case. 

The weakness of this league of States was made abundantly 

Language manifest. It is not surprising that Washington 

of should write as he did to a member of Congress : 

mgton. <£ you talk, my good sir, of employing influence to 

appease the present tumults in Massachusetts. . . . I?iflue?ice 



1 American Museum, 1786, page 270, quoted by Story. 



NATURE OF GOVERNMENT. 39 

^'is not government. Let us have a government by which our 
f lives, liberties, and properties will be secured, or let us know 
the worst at once." 1 

The weakness of the Confederation, especially in its relation 
to the revenue, had been early seen by Washington. He saw 
" that to form a new constitution, which would give consistency, 
stability, and dignity to the Union, was the great problem of 
the time." 2 So, too, Mr. Hamilton, without doubt 
r ' the ablest statesman of his age, was convinced be- views of 

/ ia-1 r^ • • Hamilton. 

fore the Articles of Confederation went into opera- 
tion that they could never answer the purposes of government. 

? As early as 1780, he sketched the outlines of a system of gov- 
ernment for the United States, embodying almost every feature 

- of our present Constitution. 3 

In May, 1785, Governor Bowdoin of Massachusetts sug- 
gested the appointment of special delegates from the States to 
define the powers with which Congress ought to be Action of 
invested. A resolution was accordingly passed by Massacnu- 
the legislature of Massachusetts, declaring the Arti- 
cles of Confederation inadequate, and calling a convention of 
delegates from all the States. 4 But the matter was not brought 
before Congress by the members of that body from Massachu- 
setts. 

In January, 1786, the legislature of Virginia appointed com- 
missioners to meet with those from other States to consider the 
subject of trade, with reference to a uniform The Annap . 
system of commercial regulations. The meeting oiis Conven- 
was held in September, at Annapolis, Maryland. tlon ° I? ' 
Only five States were represented; viz., New York, New Jersey, 
Pennsylvania, Delaware, and Virginia; but great results fol- 
lowed from the convention. The committee representing so 
few States did not enter upon the proper business of the con- 



1 Curtis, I. page 274. 2 Ibid, page 202. 

3 Ibid, I. page 204. 4 Bancroft's Hist. Const., I. page 190. 



40 CIVIL GOVERNMENT. 

vention, but prepared a report, drawn up by Mr. Hamilton, 
expressing their unanimous conviction that a general conven- 
tion should be called to devise such provisions as might render 
"the Constitution of the Federal Government adequate to the 
exigencies of the Union." 

This report, though addressed to the States represented, was 
also sent to Congress as well as to the other States. That 
body, on the 21st of February, 1787, adopted the following 
resolution : 

' ' Resolved, That, in the opinion of Congress, it is expedient 

that, on the second Monday in May next, a convention of 

delegates, who shall have been appointed by the 

Action of several States, be held at Philadelphia, for the 

Congress. . , 

sole and express purpose of revising the Articles 
of Confederation, and reporting to Congress and the several 
legislatures such alterations and provisions therein as shall, 
when agreed to in Congress and confirmed by the States, 
render the Federal Constitution adequate to the exigencies of 
government and the preservation of the Union." 

In accordance with this recommendation, all the States but 
Rhode Island appointed delegates to meet at Philadelphia at 
the time specified, Monday, May 14th, 1787. The organiza- 
tion was not, however, effected, for want of a quorum, till the 
25th, when George Washington was unanimously elected 
President. 

This Convention contained many very eminent men. George 
Washington, Alexander Hamilton, James Madison, Benjamin 
Franklin, Rufus King, Roger Sherman, James 
Convention. Wilson, Gouverneur Morris, and Edmund Ran- 
dolph would have been distinguished in any assem- 
bly. There were fifty-five members in all, most of whom were 
illustrious for their character and public services. Dr. Franklin 
had been a member of the Convention of 1754. Three had 
been present at the Congress of 1765. Seven had been mem- 
bers of the First Continental Congress. Eight were among the 



THE CONVENTION OF 1 787. 41 

signers of the Declaration of Independence. Eighteen were at 
the same time delegates to the Continental Congress ; and of 
the whole number there were only twelve who had not sat at 
some time in that body. 1 

If the Convention was composed of extraordinary men, it 
had before it extraordinary work. They were to form a com- 
plete system of republican government, with no 
example for their guidance. This was their real TheWork 

r ... to be Done. 

work, though this was not distinctly present to the 
'minds of all of them at first. Some were thinking only of 
amending the Articles of Confederation; but Hamilton and 
Madison, and others, were prepared to enter at once upon the 
construction of the organic law for a supreme general govern- 
ment, without regard, either in form or substance, to the exist- 
ing Articles of Confederation. 2 

Soon after the organization of the Convention, Mr. Randolph 
submitted a series of resolutions, embodying the views of the 
Virginia delegates as to the government desirable 
to be established. The four delegates from that Virginia 
State, Washington, Madison, Randolph, and Ma- 
son, believing that the confederacy had entirely failed as a 
constitution of government, had agreed upon a plan for a 
national government, which had been drawn up by Madison, 
and altered and amended by their joint consultations. To 
Randolph, at that time governor of the State, was assigned the 
office of bringing forward the outline, which was to be known 
as the Virginia plan. 3 Mr. Pinckney, of South Carolina, sub- 
mitted on the same day a draft of a Constitution. All these 
were referred to the Committee of the Whole, and the discus- 
sion was commenced. The first resolution adopted in Com- 
mittee of the Whole was the first of the series offered by Mr. 
Randolph, somewhat modified. It was as follows: "Resolved, 



1 Hildreth's Hist. U. S., III. page 483. 
a Towle's Analysis, page 31. 3 Bancroft, II. 6. 

A. C.--4. 



42 CIVIL GOVERNMENT. 

That it is the opinion of this committee that a national govern- 
ment ought to be established, consisting of a supreme Legisla- 
tive, Judiciary, and Executive." 

On the 13th of June, the committee reported a series of 

resolutions to the Convention. On the 15th, Mr. Patterson, 

of New Jersey, offered resolutions expressing the 

New T crscy • • 

Plan. views of those who favored amending the Articles 

of Confederation and opposed the formation of a 
new Constitution. The whole subject was then again referred 
to the Committee of the Whole, and debated till the 19th, 
when the committee reported adversely to Mr. Patterson's 
plan, and submitted the resolutions formerly reported. These 
resolutions were debated in the Convention from day to day, 
some great questions, like that of suffrage in the Senate and 
House of Representatives, being occasionally referred to a 
special committee. On the 23d of July it was voted to appoint 
a Committee of Detail, to whom should be referred 

Committee . _. . . „, , 

of Detail. tne proceedings of the Convention, except what 
related to a supreme executive, for the purpose of 
reporting a Constitution embodying what had been agreed 
upon. This committee, appointed by ballot the next day, con- 
sisted of Messrs. Rutledge of South Carolina, Randolph of 
Virginia, Gorham of Massachusetts, Ellsworth of Connecticut, 
and Wilson of Pennsylvania. The propositions of Mr. Patter- 
son and of Mr. Pinckney were also referred to this committee. 
On the 26th, after some instructions to the Committee of Detail, 
the Convention adjourned to the 6th of August. 

This committee reported at the time appointed, and their 
draft was considered by the Convention till the 8th of Septem- 
ber, when a committee of five was appointed to 

Committee , , . . _ . 

on style. revise the style and arrange the articles. I his 

Committee on Style consisted of Messrs. William 

Samuel Johnson of Connecticut, Alexander Hamilton of New 

York, Gouverneur Morris of Pennsylvania, James Madison of 

Virginia, and Rufus King of Massachusetts. On the 12th, 



THE CONSTITUTION ADOPTED. 43 

they reported the Constitution; also a letter to Congress to 
accompany the Constitution. 1 

The discussions were continued until Saturday, the 15th of 
September, when the Constitution, as amended, was agreed to, 
all the States concurring. 2 It was then ordered to The 

be engrossed, and on the Monday following it was Constitution 
signed by the members, after striking out 40,000 as gree °' 
the basis for representation, and inserting 30,000. The form 
of signature was this : ' ' Done in Convention, by the unanimous 
consent of the States present, the seventeenth day of Septem- 
ber, in the year of our Lord 1787, and of the Independence 
of the United States of America, the twelfth." 

Two of the three New York delegates having left the Con- 
vention, that State was technically not present, though 
Alexander Hamilton's signature was attached. Mr. Gerry of 
Massachusetts and Messrs. Randolph and Mason of Virginia 
did not sign the Constitution, though it was signed by a 
majority of the delegates from each of those States. 



1,4 The final draft of the instrument was written by Gouverneur Morris, who 
knew how to reject redundant and equivocal expressions, and to use language with 
clearness and vigor ; but the Convention itself had given so minute, long-continued, 
and oft-renewed attention to every phrase in every section, that there scarcely re- 
mained room for improvement except in the distribution of its parts." — Bancroft, 
II. 207. Curtis, I. 444. 

2 The votes had been by States, as in the Continental Congress. 



CHAPTER IV. 

THE CONSTITUTION OF THE UNITED STATES. 

WE, the People of the United States, in order to form a more 
perfect union, establish justice, insure domestic tranquillity, 
provide for the common defense, promote the general welfare, and 
secure the blessings of liberty to ourselves and our posterity, do 
ordain and establish this Constitution for the United States of 
America. 

This first sentence of the Constitution is often called a ' ' pre- 
amble." But that term was not applied to it by those who 
The Enacting framed the Constitution, and is not found in the 
Clause Not a original manuscript. It is not a preamble, either 
in form or substance, but is the enacting clause — 
an integral part of the Constitution itself. A preamble gives 
reasons why a resolution should be adopted or an enactment 
made, but it is no part of the resolution or enactment. The 
enacting clause, on the contrary, is mandatory. Xo other part 
of a statute is more important. Such is the introductory sen- 
tence of the Constitution. ' ' AVe, the People of the United 
States," for certain purposes, "do ordain and establish this 
Constitution for the United States of America." 

' ' Here is no transient compact between parties : it is the in- 
stitution of government by an act of the highest sovereignty ; 
the decree of many who are yet one; their law of laws, invio- 
lably supreme, and not to be changed except in the way which 
their forecast has provided." 1 



1 Bancroft, II. 208. 
(44) 



THE CONSTITUTION. 45 

We have here (i) the authority — We, the People of the 
United States ; (2) the ends for which the Constitution is made, 
in six particulars; (3) the explicit ordaining of this Constitu- 
tion, including this introductory clause; (4) the Nation for 
whom it is made — the United States of America. 

The Constitution was ordained by the people of the United 
States as a Nation. The language presupposes the unity, the 
nationality, and the sovereignty of the people. The People 
The Nation began to exist on the 4th of July, ordain the 
1776. The people then cast off their allegiance to onstitution. 
Great Britain and became a separate Nation, possessing the 
rightful sovereignty of the country. They became united in a 
national corporate capacity, as one people, and took for their 
national designation the name, the " United States of America." 
From that day to the present they have been known to the 
world by this name. Wherever in the Constitution these words 
occur, or the briefer form, the "United States," they signify 
the Nation as a whole; wherever the word "States" occurs it 
signifies the States considered separately, or as distinguished 
from the Nation. 

The purposes for which the Constitution was formed are ad- 
mirably stated: "To form a more perfect union, establish 
justice, insure domestic tranquillity, provide for . pur 
the common defense, promote the general welfare, 
and secure the blessings of liberty to ourselves and our pos- 
terity." 

The Congress of the Confederation called the Constitutional 
Convention for the purpose of forming ' ' a firm national gov- 
ernment . . . adequate to the exigencies of An Adequate 
government and the preservation of the Union." 1 Government 
The Union under the Confederation was imperfect 
and unsatisfactory, and the framers of the Constitution deter- 
mined to submit to the people an instrument which should be 



1 Jour. Cont. Cong., XII. page 14, 



46 THE CONSTITUTION. 

more efficient than the Articles of Confederation. It was a 
union of the people of all parts of the country, as constituting 
one Nation, which they wished to secure, "instead of a mere 
league of States. Under the Articles of Confederation there 
was no distinct judicial department, as there was no executive, 
while the new Constitution provided for both. The domestic 
tranquillity had been greatly interfered with because of the 
power given to the individual States; the central government 
having little more than the power to recommend. The national 
government would insure this domestic tranquillity. The 
words "common defense'' and "general welfare'' were intro- 
duced near the close of the Convention, but they met with no 
opposition. No language could be more comprehensive than 
this, "to promote the general welfare." 

For these various purposes the people of the United States 

ordain this Constitution for themselves. It is the organic, 

fundamental law for the whole people of the coun- 

Ordained by , 

the whole fry whose corporate name is the United States of 
People for America. The Nation, as such, establishes this 
se ves ' Constitution, making it sufficient for all the exi- 
gencies of government. As the organic law of the nation, it 
is every-where supreme. Subordinate governments may con- 
tinue and new ones be established, but always in conformity 
with this. 

The Constitution contains seven articles, which are sub- 
its Seven divided into sections. In the original there are 
Articles. no headings to the articles. Both articles and 
sections are numbered. 

Article ist relates to the Legislative power. 
Article 2d, to the Executive power. 
Article 3d, to the Judicial power. 
Article 4th, to various subjects. 

Article 5th, to the mode of amending the Constitution. 
Article 6th. to the validity of debts contracted before the 
adoption of the Constitution, and to its supremacy. 



I. I. I. THE HOUSE OF REPRESENTATIVES. 47 

Article 7th, to the mode of its ratification. 

Besides these seven articles, fifteen amendments have been 
made to the Constitution, which are as binding as the original 
articles. 

article 1. 

The Legislative Department. 

Sec. I. — All legislative powers herein granted shall be vested in a 
Congress of the United States, which shall consist of a Senate and 
House of Representatives. 

Under the Confederation, the whole governmental authority- 
was vested in Congress. There was no Executive department, 
and no Judicial. The first resolution adopted in congress in 
the Constitutional Convention was that a National Two 
government ought to be formed, consisting of 
supreme Legislative, Executive, and Judicial departments. 
Most legislative bodies have two houses. This is true of all 
the existing State governments, and was true of all at the time 
the Constitution was framed, except Pennsylvania and Georgia, 
which had but one each. 1 The Continental Congress had but 
one house. While there is a general distribution of powers 
among the three great departments of the government, the 
exercise of these powers is not absolutely exclusive. We shall 
see that the President has a qualified veto on legislation, and 
that the Senate sometimes acts as a court, and sometimes trans- 
acts executive business. 

Sec. 2, Clause 1. — The House of Representatives shall be 
composed of members chosen every second year by the people of the 
several States ; and the electors in each State shall have the qualifica- 
tions requisite for electors of the most numerous branch of the State 
legislature. 



1 The constitution of Georgia, adopted in 1789, provided for two houses; as did that 
of Pennsylvania, adopted in 1790. 



48 THE CONSTITUTION". I. II. 2. 

Under the Confederation, the members of Congress were 
chosen annually, and as the legislature of each State should 
Representa- direct. They could also be recalled. The Con- 

tives. stitution makes the term of service of the Repre- 

sentatives two years, and requires that the election shall be by 
"the people." A parliament of England expires at the end of 
seven years unless sooner dissolved. 

Those who vote for Representatives to Congress must have 

the qualifications requisite to enable them to vote for members 

of the lower house of the State legislature, but it is 

By Whom not c i ear by wn0 m these qualifications are to be 

Chosen. . . 

prescribed. The common opinion has been that 
the State prescribes them. The Constitution says simply that 
the qualifications must be the same; so that whoever can vote 
for the State representative can vote for the National one also, 
and vice versa. The Constitution does say that Representatives 
to Congress shall be elected by the people, thus virtually saying 
that the members of the most numerous branch of the State 
legislature shall also be elected by the people. Under the Arti- 
cles of Confederation, the delegates in all the States but two 
were elected by the legislature. 1 

Clause 2. — No person shall be a Represe?itative who s/iall not 
have attained to the age of twenty-five years, a?id been seven years a 
citizen of the United States, and who shall not, when elected, be an 
inhabitant of that State in which he shall be chosen. 

The qualifications of a Representative relate to age, citizen- 
ship, and inhabitancy; he must be twenty-five years old, a 
citizen of the United States for seven years, and an 

Qualifications. 

inhabitant of the State where he is elected. It has 
been decided that the States can not prescribe additional quali- 
fications. 



1 Federalist, No. 40. 



I. II. 3. THE HOUSE OF REPRESENTATIVES. 49 

According to the Articles of Confederation, no person could 
be a Representative in Congress more than three years in six; 
and each State prescribed the qualifications of its own Repre- 
sentatives. In the British Parliament the required age is 
twenty-one years ; and the same age is required in the different 
States of our Union. The Representative must have been a 
citizen of the United States for seven years. The United States 
is spoken of as one country, — a nation. It would be nonsense 
to say a Representative must have been seven years a citizen of 
the thirteen States. Yet a United States Senator, in an argu- 
ment for secession, once said, on the floor of the Senate, that 
he pitied the stupidity of any one who supposed there was or 
could be a citizen of the United States ! In a treaty with 
France, negotiated by Thomas Jefferson in 1788, he styles him- 
self "a citizen of the United States." 

The Representative must be an inhabitant of the State in 
which he is chosen, but not necessarily of the district. In 
England, members of Parliament often represent Res i dence f 
boroughs and cities other than those in which they the Repre- 
live. Some cases have occurred in this country. 1 
The Constitution does not require the Representative to be a 
voter. A State qualification for suffrage might exclude from 
the polls one who possessed the requisites for a Representative. 
If a State should come into the Union through conquest or pur- 
chase, the inhabitants becoming citizens thereby, the seven 
years' citizenship would not be insisted on. 

Clause 3. — Representatives and direct taxes shall be apportioned 
among the several States which may be included within this Union, 
according to their respective numbers, which shall be determined by 
adding to the whole member of free persons, including those bound to 



1 Hon. O. B. Potter, a member of the 48th Congress from the city of New York, 
represented a district in which he did not reside. The same was true of Hon. S. S. 
Cox. In England, the members of the House of Commons were formerly required to 
reside in the districts for which they were chosen. But this was for a long time dis- 
regarded in practice, and repealed by statute in the time of George III. — Story, £619. 
A. C.-5. 



50 THE CONSTITUTION. I. II. 3. 

service for a terni of years, and excluding Indians n-ot taxed, three 
fifths of all other persons. Tlte actual enumeration shall be ?nade 
within three years after the first meeting of the Congress of t/ie 
United States, and within . " r.'.bsequ-ent term of ten years. 
su-ch manner as t/icy s/iall by law direct. Tlie number of Repre- 
sentatives shall not exceed 0J2£ for even' thirty tlwusand, but each 
State shall have at least one Representative ; and until such enumer- 
ation shall be made, the State of New Hampshire shall be entitled 
to c/ioose three ; Massachusetts, eight ; R/wd-c Island and Providence 
Plantations, one ; Connecticut, five ; Ni Nem. r sey, 

four; Pennsylvania, eight ; Delaware, one; Maryland, six; 
Virginia, ten; North Carolina, five ; South Carolina, five ; and 
Georgia, three. 

When the Continental Congress commenced its sessions, Sep- 
tember 5th. 1774, the following resolution was adopted: 

"Resolved, That in determining questions in this Congress, 
Voting in the eacn colony or province shall have one vote : the 
Continental Congress not being possessed of, or at present able 

ongress. to p rocure ^ p r0 per materials for ascertaining the 
importance of each colony.'" 

• • As if foreseeing the time when population would become 
of necessity the basis of congressional power, they inserted, in 
the resolve determining that each colony should have one vote, 
a caution that would prevent its being drawn into precedent" 1 

The Articles of Confederation followed the same rule, and thus 

this method of voting prevailed till the Constitution went into 

Discussion operation in 1789. When the Convention decided 

in the to form two legislative bodies, the question of vot- 

Convention. • V« r r i 

mg came up. Some were m favor of an equal 
representation by States in each branch, while others favored a 
popular basis, and a proportionate representation in each House. 
In general, the larger States wished the representation to be in 



1 Curtis, I. p3ge 17. 



I. II. 3. THE HOUSE OF REPRESENTATIVES. 5 1 

proportion to the importance of the State, while the smaller 
States favored an equality, as in the Continental Congress. 

It was first decided that in the House of Representatives 
suffrage should not be like that under the Confederation, but 
according to some equitable ratio of representation. Decision as to 
The question then arose as to the basis of that Representa- 
ratio. Should the different States send Representa- 
tives in proportion to their population or their wealth ? And if 
according to population, who were the people? Should the 
number of representatives be according to the number of voters, 
or as the white population, or as the free population, or as the 
whole ? It was decided that the representation from the States 
should be "according to their respective numbers"; that is, as 
the whole population, but that only three fifths of the slaves 
should be counted. 

According to the Articles of Confederation, the votes were by 
States — each State, whether large or small, having one vote. 
But the quotas for the support of the General Gov- The 

ernment were as the values of real estate in the Three Fifths 
several States. In 1783, the Continental Congress 
recommended to the States to amend the Articles, so that each 
State should pay ' ' in proportion to the whole number of free 
inhabitants, and three fifths of the number of all other inhab- 
itants of every sex and condition, except Indians not paying 
taxes in any State." 1 The Convention followed, both as to 
representation and direct taxes, this proposed amendment, 
though it was never ratified by the States, and this was the 
origin of the three fifths rule. 

The adoption of this rule was favorable to the Slave States as 
it increased the number of their Representatives; it was un- 
favorable, as it increased their proportion of direct taxes. The 
advantage was greater than the disadvantage, however, as they 
enjoyed the increased number of Representatives continually, 



1 Jour. Cont. Cong., VIII. page 123. 



52 THE CONSTITUTION". I. II. 3. 

while direct taxes have been levied but five times since the 
adoption of the Constitution. 

Slavery having been abolished in 1S65 by an amendment to 

the Constitution, all the colored population must be counted in 

Effect of the determining the number of Representatives from a 

Abolition of State. If this class of the population could not 

vote, the Southern States would have nearly twice 

as many Representatives, in proportion to the number of voters, 

as the Northern States. 

Thus, by the census of 1S60, Pennsylvania had 2.S93.266 white inhab- 
itants, and twenty-four Representatives. North Carolina, South Carolina, 
Georgia, Alabama, Florida, Mississippi, and Louisiana had 2,829,785 
white inhabitants, and thirty-nine Representatives. If the white inhab- 
itants and tkree fifths of the blacks gave them thirty-nine Representatives, 
these States would have fifty Representatives, counting all the blacks ; 
that is, with a less voting population than Pennsylvania, they would have 
more than twice as many Representatives. To remedy this inequality, 
the Fourteenth Amendment provides that if the right to vote is denied 
to any class of citizens, the basis of representation shall be reduced in 
proportion. 

The basis of representation was reported at 40,000 by the 

committee, and so remained till the last day of the Convention, 

Basis of ^vhen it was changed to 30,000, General Washing- 

Representa- ton himself advocating the change. This is said 

to have been the only occasion on which he 

entered into the discussions of the Convention. 

A question arose early in Washington's administration as to 

the construction of this clause. Should the number of Repre- 

Question in sentatives be determined by dividing the whole 

the First population of the United States by the number 

ongress. ^j-^ as t h e basis of representation, or by dividing 

the population of the respective States by that number, and taking 

the sum of the quotients. The former method would give the 

largest number of Representatives, and was adopted by Con- 



I. II. 3. THE HOUSE OF REPRESENTATIVES. 53 

gress in the bill first passed. But the bill was returned by- 
President Washington as conflicting with the language of the 
Constitution. Congress yielded to the judgment of the Presi- 
dent, and the method then adopted of dividing the population 
of each State by the basis of representation continued till 
1842. 

The bill of 1790, as passed, provided for 120 Representatives, the 
basis of representation being 30,000. Dividing the population of each 
State by 30,000 would give only 112. A new bill was passed and 
approved in 1792, making the number of Representatives 105, according 
to a ratio of one member to 33,000 persons in each State. Dividing the 
whole population by 33,000 would give no. 

This plan was followed for fifty years. In 1842 the law pro- 
vided for fractions of the basis. The act of Con- 
gress of that year gave one Representative for The Plan of 
every 70,680 persons and for a fraction greater 
than one half of that number. 

After the census of 1850 another change was made. Hitherto 

the basis, or ratio, of representation had been first determined, 

and from that the number of Representatives. In 

18^0 the method was reversed. The number of Plan of 

. 1850. 

Representatives was first agreed upon; then the 

whole population was divided by tnat number, and the quotient 
was the ratio or basis. With this ratio the population of each 
State is divided, the quotient being the number of its Repre- 
sentatives. The number of Representatives necessary to make 
the whole number is divided among the States having the largest 
fractions. 

The first enumeration of the people was made in 1790, the 
second in 1800, and so on. After the census returns have been 
made, Congress provides by law for the representation, to take 
effect March 4th of the third year after the decennial year. 
The Constitution itself provided for 65 members for the First 
Congress. 



54 THE CONSTITUTION. I. II. 4. 

The number of Representatives for the different decades, and 
the number of inhabitants for a Representative, are as follows : 



Period. 


No. of Members. 


R; 


itio of Population 


1 789-1 793 


6 








1 793-1803 


105 




33,000 


1803-18 13 


141 




33,000 


1813-1823 


181 




35,000 


1823-1833 


212 




40,000 


1S33-1843 


240 




47,700 


1S43-1853 


223 




7o,6So 


1853-1S63 


234 




93. 5°° 


1S63-1873 


241 




127,941 


1S73-1883 


292 




130,533 


18S3-1893 


325 




151,911 



The actual number of Representatives has usually been 
greater than that here given, owing to the admission of new 
States. Thus, the Forty-second Congress (1871-1873) had 243 
instead of 241 ; Nevada having been admitted in 1864 and Ne- 
braska in 1867. 

After the number of Representatives has been determined for a 
decade, each State is divided into districts corresponding to its number 
of members, the voters of each district voting for one member. Some- 
times an additional member has been assigned to a State after this division 
into districts has been made ; and to avoid the inconvenience and expense 
of a special session of the legislature, Congress has authorized the addi- 
tional member to be elected by the State at large. This was the case in 
Illinois in 1862, and in a number of States in 1872. 

Each organized Territory is allowed by law to send one dele- 
gate to Congress, who may participate in the discussions, but 
can not vote. In the Forty-ninth Congress there were eight 
delegates from the Territories. 

Clause 4. — When vacancies happen in the representation from 
any State, the executive authority thereof shall issue writs of election 
to fill such vacancies. 



I. II. 5. THE HOUSE OF REPRESENTATIVES. 55 

Vacancies may be created by death, resignation, removal, or 
accepting incompatible offices. AH these cases have occurred. 
The person thus elected to fill a vacancy serves only for the 
remainder of the term. 

Clause 5. — The House of Representatives shall choose their 
Speaker and other officers, and shall have the sole power of im- 
peachment. 

The Speaker is the presiding officer of the House. The pre- 
siding officer of the Continental Congress was styled President. 
Where a legislature is composed of two houses, the 

. .. r i i • n Officers of the 

presiding officer of the upper house is usually House, 
called President, and of the lower house Speaker. 
The British House of Commons choose their Speaker, but the 
approbation of the Crown is necessary. 

The other officers of the House of Representatives are a 
Clerk, Sergeant-at-Arms, Door-keeper, Postmaster, and Chap- 
lain. 

The office of Clerk is one of great importance, and is usually 
filled by an ex-member of Congress. The Clerk presides at the 
organization of the subsequent Congress. 

The Congress that convened December 3d, 1855, did not succeed in 
electing a Speaker till the 2d of February, 1856, having balloted 133 
times. Mr. N. P. Banks was the successful candidate. In the case of the 
Thirty-sixth Congress, in the winter of 1859-60, there was a delay of nine 
weeks. Mr. John Sherman was the principal Republican candidate, on 
one ballot lacking but three votes. He declined in favor of Mr. William 
Pennington, who was elected. A list of the Speakers will be found in 
the Appendix. 

The Constitution gives to the House of Representatives the 
sole power of impeachment, and to the Senate the sole power 
to try the party impeached. As a citizen can not 
be tried before an ordinary court until he has been ment 
indicted by a grand jury, so an officer of the Gov- 
ernment can not be tried by the Senate until articles of im- 



56 



THE CONSTITUTION. I. m. i. 



peachment have been brought against him by the House of 
Representatives. 

The method of proceeding, so far as the House is concerned, is this : 
A committee is appointed to inquire into the conduct of the officer sup- 
posed to have been guilty of acts requiring impeachment. If they report 
in favor of impeachment, the question is acted on by the House. Should 
the House determine on impeachment, articles are prepared, embodying 
the charges, on each of which action is taken. A committee is then ap- 
pointed to prosecute the impeachment before the Senate. The method 
of trial and a list of the persons impeached will be given in a subsequent 
part of the work. 

Sec. 3, Clause I. — The Senate of the United States shall be 
composed of two Senators from each State \ chosen by the legislature 
thereof, for six years ; and each Senator sliall have one vote. 

In the Convention that framed the Constitution there was a 
great difference of opinion as to the mode of electing Senators, 
_ „ as to their term of service, and as to the rule of 

The Senate. 

suffrage. Some were in favor of a nomination by 
the State legislatures, and an election by the United States 
House of Representatives; others would have the President 
appoint from those nominated by the State legislatures; others 
would have them chosen by the House of Representati T . res ; 
and others still proposed an election by the people. 

As to the term of office, some advocated a life tenure or dur- 
ing good behavior; some, a term of nine years; others, seven; 
others, six; and others, four. 

The .irstion of voting was the most difficult. As in the 

Continental Congress the States were on an equality as to their 

votes, the smaller States wished the same rule to 

Question of, _ , _ 1 -» « i n 

Voting. hold under the Constitution; while the larger States 

claimed that an equality of votes in either House 

would be unjust. The smaller States finally conceded that in 

the House of Representatives the number of members should 

be in proportion to population; but they insisted that in the 



I. III. I. THE SENATE. • 57 

Senate the States should be equal. But the larger States were 
tenacious as to the Senate as well as to the House, and the 
Committee of the Whole reported, ' ' That the right of suffrage 
in the second branch of the national legislature ought to be 
according to the rule established for the first." This report 
was adopted by the Convention ; but the matter was subse- 
quently referred to a committee of one from each State, who 
reported the rule as it now stands. The final vote was : 
Affirmative — Connecticut, New Jersey, Delaware, Maryland, 
North Carolina — 5 ; Negative — Pennsylvania, Virginia, South 
Carolina, Georgia — 4. Massachusetts divided. "So that this 
greatest and most difficult of all the important questions which 
the Convention was called upon to solve was carried by less 
than a majority of the States present, and by the concurrence 
of less than one third of the represented population." 1 

The first House of Representatives was to consist of 65 members ; 
Connecticut, New Jersey, Delaware, Maryland, and North Carolina having 
21, or less than one third of the whole number. (See Constitution, Art. I. 
Sec. 2, Clause 3.) 

Mr. Madison strongly opposed the principle finally adopted. 
In his letter to Mr. Sparks he said the Gordian knot of the 
Convention was the question between the larger and smaller 
States as to the rule of voting in the Senate; the latter claim- 
ing, the former opposing, the rule of equality. 2 

By the Articles of Confederation each State might send not 
more than seven delegates to Congress, nor less than two. 
They were elected annually, but no one could sit 

it • mi o i 1 Number of 

more than three years in six. I he States could senators, 
recall their delegates at any time. Under the 
Constitution, we see that each State can send two Senators, and 
as many Representatives as her population entitles her to; that 
there is nothing to prevent a Senator or Representative from 



1 Towle, page 69. 

2 Elliot, I. page 508. 



58 THE CONSTITUTION. I. III. I. 

being returned as often as his constituents desire; and that, 
when a Senator or Representative has been elected, the State 
has no power to recall him. 1 

Though all the States have the same number of Senators, 
and each Senator has one vote, that is not the same as voting 
by States, as was done in the Continental Congress. If both 
the Senators of a State are present, and vote on opposite sides 
of a question, their votes neutralize each other, as under the 
Confederation. But if only one of two delegates from a State 
was present in the Continental Congress, his vote could not be 
counted ; under the present Constitution, the vote of a Senator 
is counted whether his colleague is present or not. 

The Constitution does not prescribe the precise method in 

which the legislature of a State shall choose the Senators, 

whether by the houses voting in joint assembly, or 

Election of , . . . 

Senators. by voting separately. It is not properly an act of 
legislation, and the governor of a State has no 
participation in it, as, in some States, he has in ordinary legis- 
lation. 2 

In 1866, Congress passed an "Act to regulate the times and 

manner of holding elections for Senators in Congre It 

provides that the legislature of each State, which 

l86 5_ shall be chosen next preceding the expiration of 

the time for which any Senator was elected, shall, 

on the second Tuesday after the meeting and organization 

thereof, proceed to elect a Senator as follows : 

Each House shall name (propose by vote) a person for 
Senator by a viva voce vote; the next day at noon the two 
Houses shall meet in joint assembly, and if the same person 



1 Thomas H. Benton was thirty years a Senator from Missouri. Charles Sumner 
and Henry Wilson were elected four times each from Massachusetts. 

' New York had no Senators for the first few months of the Firsl I : ngress, because 
of disagreement between the two branches of the legislature. The smaller upper 
house favored voting separately; the larger lower house wanted a joint Tote of the 
two houses. 



I. III. 2. THE SENATE. 59 

shall have received a majority of all the votes in each House, 
he shall be declared duly elected. 

If no person has received such majorities, the joint assembly 
shall choose by a viva voce vote; and whoever shall receive a 
majority of all the votes cast, a majority of each House being 
present, shall be declared elected. 

If no person is elected the first day, the joint assembly shall 
convene each day at twelve o'clock and take at least one vote 
each day during the session, or until a Senator is elected. 

If a vacancy exists when the legislature convenes, the same 
steps shall be taken ; and if a vacancy occurs during the session 
of the legislature, they shall proceed to elect on the second 
Tuesday after they have had notice of the vacancy. 

Clause 2. — Immediately after they shall be assembled in conse- 
quence of the first election, they shall be divided as equally as may 
be into three classes. The seats of the Senators of the senators 
first class shall be vacated at the expiration of the Divided into 
second year, of the second class at the expiration of the ree asses 
fourth year, and of the third class at the expiratmi of the sixth 
year, so that one third may be chosen every second year ; and if 
vacancies happen by resignation, or otherwise, during the recess of 
the legislature of any State, the Executive thereof may make tem- 
porary appointme7its until the next meeting of the legislature, which 
shall then fill such vacancies. 

When the Senate convened March 4th, 1789, there were 
twenty Senators present : Rhode Island and North Carolina 
had not yet ratified the Constitution, and New York had not 
elected her Senators. These twenty were arranged in three 
groups, which were divided by lot among the three classes, 
making seven of the first, seven of the second, and six of the 
third. When the two Senators from New York took their seats, 
July 26th, one was placed in the third class, and the other in 
the first, making eight of the first class, and seven of each of 



60 THE CONSTITUTION. I. III. 2. 

the others. The North Carolina Senators, who came in No- 
vember, fell into the second and third classes. The classes 
had now eight in each of them. Thus, the Senators of each 
new State have been placed in different classes, that their terms 
might not expire at the same time; and the classes have been 
kept substantially equal, so that the terms of one third of the 
Senators may expire every second year. 

If a Senator from a new State is placed in the third class, 

we are not to infer that his term will be six years. As the 

Constitution went into operation in 1789, the terms 

■Working of _ . . 

the Plan. of the Senators of the first class would expire in 
1 791. The terms of their successors would expire 
in 1797, 1803, 1809, and so on. The terms of the Senators 
of the second class would expire in 1793, 1799, 1805, etc.; and 
those of the third class in 1795, J 801, 1807, etc. The Senators 
from Ohio took their seats in 1803. One of them was placed 
in the first class, and the other in the third. As the terms of 
Senators of the first class expire in 1809, 1815, etc., the one in 
the first class would remain in office six years, while the one in 
the third class would remain but four, the terms of the third 
class expiring in 1807. Thus one Ohio seat in the Senate be- 
comes vacant in 1893, 1899, and so on; the other, in 1891, 
1897, and so on. 

The Senate is a permanent body, while the House of Repre- 
sentatives is changed every two years. As the Constitution 
a congress went into operation on the 4th of March, 1789, 
Designated the term of office of every Senator, as well as 
umenca y. j^ e p resen ^- at j ve? enc js on t h e ^h f March of a 

year denoted by an odd number. A Congress is measured by 
the term of office of the Representatives, the first extending 
two years from the 4th of March, 1789. It is customary to 
designate each Congress by an ordinal number. The Fiftieth 
Congress began March 4th, 1887, and ends March 4th, 1889. 
When a vacancy is temporarily filled by executive appoint- 
ment, the Senator thus appointed holds his office till the leg- 



I. III. 3. THE SENATE. 6l 

islature choose his successor, or adjourn without making a 
choice. 

The legislature of a State sometimes adopt resolutions in 
which their Representatives in Congress are "requested," and 
their Senators "instructed," to vote for certain 
measures; thereby implying that the legislature "instructed." 
have the right to "instruct" their Senators, while 
they have not that right in regard to their Representatives. 
But there is no right of instruction in either case. The Con- 
stitution prescribes the mode of election for the Senator and for 
the Representative; one is elected by the legislature, and the 
other by the people of his district. The mode is immaterial ; 
it is but a mode. Once elected, the Senator, as well as the 
Representative, must be guided by his own enlightened judg- 
ment, and can not be instructed by those who elected him. 
Nor is either the Senator or Representative to consult exclusively 
the interests of his own State or district. He is a member of a 
body which legislates for the Nation. He is to consult the 
interests of the whole people, and not merely those of a sec- 
tion. 

Clause 3. — No person shall be a Senator who shall not have 
attained to the age of thirty years, and been nine years a citizen of 
the United States, and who shall not, when elected, be an inhabitant 
of that State for which he shall be chosen. 

A Representative must be twenty-five years of age; a Sena- 
tor, thirty. A Representative must have been a Q Ua i ifications 
citizen seven years ; a Senator, nine. The condi- of a 

tion as to residence is the same for both. 

The age required in a Roman Senator was thirty years. In 
Rome, majority was not attained till the age of twenty-five; the 
same is true in France and Holland. 1 



1 Story, §728. 



62 



THE CONSTITUTION. 



I. III. 4. 



Two cases have occurred of elections to the Senate without 
the requisite number of years of citizenship. Albert Gallatin 
was elected from Pennsylvania in 1793: his seat was vacated 
by resolution of the Senate. James Shields was elected from 
Illinois in January, 1849; ms seat was vacated, also, but he 
was re-elected in October of the same vear, his disabilitv ha vino; 
been by that time removed. 

There is nothing to prevent a Senator's changing his residence 
to another State after his election. He is not the representative 
of a particular state. 

Clause 4. — TJie Vice-presidcJit of the United States shall be 
President of the Senate, but shall have no vote, unless they be 
equally divided. 



The Vice- 
president. 



The Convention that formed the Constitution did not at first 
contemplate such an officer as Vice-president. The Senators 
were to elect their own presiding officer, who was 
to become President of the United States in case 
of the death, resignation, or removal of that 
officer. But as the mode of electing a President which was 
adopted by the Convention required two persons to be voted 
for at the same time, the one receiving the highest number of 
votes to be President, this provision for a Vice-president was 
made near the close of the session. The lieutenant-governor 
of a State is usually the presiding officer of the State Senate. 



The casting vote of the Vice-president can be of efficacy only when in 
favor of a measure. If he had no vote, no measure could he carried 
upon which the Senate were equally divided. As it is, he has helped 
to carry some measures of great importance. By a rule of the Senate, 
adopted in 1828, " every question of order shall be decided by the presi- 
dent without debate, subject to appeal to the Senate." 

In the British House of Lords, the Lord Chancellor, or some other 
person appointed by the Crown, presides. If no person is appointed, the 
Lords elect. 



I. III. 5. THE SENATE. 63 

Clause 5. — The Senate shall choose their other officers, and also 
a President pro tempore, in the absence of the Vice-president, or 
when he K shall exercise the office of President of the United States. 

The "other officers" of the Senate are a Secretary, Chief 
Clerk, Executive Clerk, Sergeant-at-Arms, Door-keeper, and 
Chaplain. 

The President pro tempore seems not to be appointed perma- 
nently, except on the death of the Vice-president, or on his 
becoming President. 

The removal, by death, of Presidents Lincoln and Garfield, and of 
Vice-presidents Wilson and Hendricks, have made a president pro tempore 
necessary for more than half the time since 1 865. The office has been 
filled successively by Messrs. Foster, Wade, Ferry, Davis, Edmunds, 
Sherman, and Ingalls. 

When the Vice-president becomes President of the United 
States, the President pro tempore receives the salary of the Vice- 
president. The President pro tempore is not restricted to a 
casting vote; he has his vote as Senator. 

Clause 6. — The Senate shall have the sole power to try all im- 
peachments. When sitting for that purpose, they shall be on oath 
or affirmation. When the President of the United States is tried, 
the Chief Justice shall preside ; and no person shall be convicted 
without the concurrence of two thirds of the members present. 

The Senate, whose principal functions are legislative, is here 
clothed with judicial powers. All those who are The Senate 
impeached by the House of Representatives must Try impeacn- 
be tried by the Senate. 

In Great Britain, the power of impeachment is with the 
Commons, and the power of trial with the Lords; but the 
Lords do not take a special oath, and a majority is sufficient to 
convict. Our method is thus more favorable to the party under 
trial than the British. 



:_ ------ - : :::::. - 

"«"hri z:t ~:y^~: is zrri ±.f 7'i.jt: ~.sz\z -;^r. it- ':•-- 

If the President is ccm^icted, the ITice-^pRsaJemft < smnrgsq$s u© 
the offi :t . . i drew Johnson toss tried in i$6$> Cftidf 

'_.;::: 7 [ :r.\- j res: dt~ I: I«'l: f:c_r:s:-c :.: : >■:: ::i" :.r:. 
::.: ?res. itn: /-.' :'"y ,; ' ; ~'--'- '-'' "- --~ ::' l''Zur:.'i :?: 
1792, have snaceeded to the presiQency; am dot accantit it was 
._-■--. -" 

...7 v:»:ec : :. .:. 7 : ; : 7 ;.i rzi:tz t- :..::: ;\ : . 



-mnmril Cr -.upreme Court, in 

1804; James IEL Pec. I v ire :•:' M i imi—ii. 111 ^J»; W<estt EL 

Hnmplir t I ~ : . -7- ~ :: : 

Pres: ; e anfl W. W. lielknHp :.iy «ff Wa^, in 1876. 






P. :. e : - t:: 

: Lases of ZJt^kd States ; §mi &g party eemamSei shaE weswrfflbc- 
and pumshmcTtt^ mmnfiaag iv law. 

In England there is hd snen 

The person . . : .-.■-. : : 7 - :.. 7 : 

:r pu: . : iei.th. But in our country 

_rz:'-.L. — rr.~:.i-'iL ii~r~ 
jndgMBB^, 
fox the criminal vioLation off law. 

Ir z f\ . f-7 ■-.-.:..: i~z.:.z :: i= :;: ir: i:l:: 1 :."„ :c5:-.r: : :' ±t 

7 : :.: : :::•: ' r -. : 
:r:~ : 5 : 7 T ,. : : -.:_.;.:.- 7:7:.: := i~z>~rL.z:~'± :.z m~" :>-. y~- 
jfeihed luith er rjy disgnaiir - . T 7 




I. IV. I. CONGRESSIONAL ELECTIONS. 65 

ment inflicted on such an officer, who has been convicted by 
the Senate, can not be less than removal from office ; it can not 
be greater than removal and disqualification combined. Judge 
Pickering was removed from office only ; Judge Humphries was 
removed from office, and declared disqualified to hold any 
office of honor, trust, or profit under the United States. 

Sec. 4, Clause i. — The times, places, and manner of holding 
elections for Senators and Representatives shall be p OW erof 
prescribed in each State by the legislature thereof ; but Congress in 
the Congress may, at any time, by law, make or alter Electl0ns - 
such regulations, except as to the places of choosing Senators. 

By act of Congress, passed June 25th, 1842, it was provided 
that Representatives should be elected by districts of contiguous 
territory equal to the number of Representatives. 
This is believed to have been the first instance of Exercise, 
any regulations by Congress touching elections of 
Senators or Representatives. In 1866 an act was passed to 
regulate the mode of choosing Senators, as already stated. In 
1 87 1 Congress enacted that all votes for Representatives in 
Congress should be by written or printed ballots, any law of any 
State to the contrary notwithstanding. In 1872 provision was 
made that Representatives should be elected on the same day 
throughout the United States, viz., on the Tuesday after the 
first Monday in November; to go into effect in 1876. By act 
of 1875, States whose constitutions prescribed a different day 
were exempted from its effect. 

This clause, giving to Congress the ultimate control as to 
elections for Senators and Representatives, met with little oppo- 
sition in the Convention, but it was opposed in opposition 
some of the State conventions called to ratify the to this 
Constitution. "Its propriety," says Mr. Hamil- 
ton, "rests upon the evidence of this plain proposition that 
every government ought to contain in itself the means of its 

A. C.-6. 



66 THE CONSTITUTION". I. IV. 2. 

own preservation.'* 1 But the opponents of the Constitution 
maintained that this clause gave to Congress the whole ultimate 
control of elections for members of Congress, including the 
qualifications of electors and elected, except as stated elsewhere 
in the Constitution. 

Patrick Henry said: "The control given to Congress over the time, 
place, and manner of holding elections will destroy the end of suffrage. 
. . . Congress may tell you they have a right to make the vote of one 
gentleman go as far as the votes of a hundred poor men. . . . They 
may regulate the number of votes by the quantity of property, -without 
involving any repugnancy to the Constitution." 2 

The practice has been for the States to prescribe the qualifications of 

voters in their constitutions. Mr. Farrar claims, on the other hand, that 

is well understood by both parties at the time the Constitution was 

framed, " that the whole law of elections, subject to the provisions of the 

Constitution, was under the control of Congress."' 3 

The Constitution of the Confederate States says, <; Xo person 
of foreign birth, not a citizen of the Confederate States, shall 
be allowed to vote for any officer, State or Federal." Thus, 
their federal Constitution prescribed qualifications for voters at 
State elections. 

The restricting clause, as to the place of choosing Senators, 
was inserted that Congress should not have the right to pre- 
scribe to the State legislatures their places of meeting. 

Clause 2. — T/ie Congress sliall assemble at least once in every 
. and such meeting shall be on the first Monday in December, 
unless they shall by laiif appoint a different d. 

Annual sessions are thus made imperative. As the term of 
each Congress is two years, there would be two regular sessions 



Federalist, No. 59. a Elliot, III. pages 60, 175. 

1 Manual of the Constitution, page 268. 



I. IV. 2. CONGRESSIONAL SESSIONS. 67 

during each term. There have been repeated instances of 
three sessions by the same Congress. 1 For the first thirty-two 
years, the regular sessions began on the first Mon- 
day in December about half the time; since that, congress, 
all the regular sessions have begun on that day. 

The first regular session of each Congress usually continues 
from December till the following spring or summer. The 
Thirty-first Congress was in session till the 30th The Two 
of September — three hundred and two days. The Sessions Un- 
second regular session closes at noon on the 4th equa ' 
of March, being thus about three months long. Until 1853 
the term ended at midnight of the 3d of March. Since that 
time Congress has continued in session till noon of the 4th. 
The journals of the two houses still bear the date of the 3d, 
and the laws signed between midnight and noon of the 4th 
are dated the 3d of March. 

By act of January 22cl, 1867, each new Congress was required to meet 
"at twelve o'clock, meridian, on the 4th day of March, the day on 
which the term begins for which Congress is elected." Under this act 
each Congress had three sessions : the first commencing on the 4th of 
March, the second on the first Monday of December of that year, and the 
third on the first Monday of December of the following year. The first 
session was very short, and the second and third were regarded as the 
regular sessions. This act has now been repealed. It was in force during 
the Fortieth, Forty-first, and Forty-second Congresses. 

Under the Articles of Confederation, the congressional year 
began the first Monday in November, the members being 
elected for one year. Congress might adjourn to any time 
within the year, but no period of adjournment could be for a 
longer time than six months. 



1 There were three sessions in the First Congress, the Fifth, Eleventh, Thirteenth, 
Twenty-fifth, Twenty-seventh, Thirty-fourth, Thirty-seventh, Fortieth, Forty-first, 
Forty-second, Forty-fifth, and Forty-sixth. 



68 THE CONSTITUTION. I. V. I. 

Sec. 5, Clause I. — Each House shall be the judge of the elec- 
tions, returns, and qualificatiotis of its ow?i members, and a majority 
of each shall constitute a quorwn to do business; but a smaller 
number may adjourn fro??i day to day, and may be authorized to 
compel the attendance of absent members in such manner and under 
such penalties as each House may provide. 

The certificate of election furnished by the State authorities 
is prima facie evidence that the person holding it is entitled to 
a seat, but it is not conclusive. Each House has 
Seats. a Committee on Elections, to whom are referred 
all doubtful cases, and on their report the House 
decides : from this decision there is no appeal. Most legisla- 
tive bodies exercise the same power as to the admission of 
members. 1 

A majority seems to be a suitable quorum. In the British 
House of Commons, composed of about six hundred and 
seventy members, forty-five is a quorum. Under the Articles 
of Confederation, no question, except that of adjournment, 
could be decided unless by a majority of all the States ; and for 
the most important questions nine States were required, i. e., 
two thirds. 

There was no power to compel attendance, and business was frequently 
delayed through the absence of members. In one instance, Congress 
assembled on the 3d of November, but there was no quorum till the 
14th of January. Rhode Island once recalled her delegates, and so 
prevented the transaction of important business. 

In the State of Ohio, no bill can be passed without the votes 
of a majority of all the members elected to each House. The 
new constitution of Illinois has a similar provision. 



1 Until 1867, the British House of Commons decided all questions touching the 
elections of its memhers, but since that date election-petitions (or contests) are tried by 
the common-law judges.— -Johnson'' s Cyclopedia, Art. Parliament. 



I. V. 2, 3. RULES OF PROCEEDINGS. 69 

By a rule of the House of Representatives, fifteen members, 
including the Speaker, can compel attendance. 1 

Clause 2. — Each House may determine the rules of its proceed- 
ings, punish its members for disorderly behavior, and, with the con- 
currence of two thirds, expel a member. 

The "rules of proceedings" constitute what is called Parlia- 
mentary Law. When the First Congress convened, in 1789, the 
House of Representatives established rules, some 
of which are still in force. At the beginning of Rules, 
the first session of each Congress it is usual to 
adopt the rules of the previous Congress until otherwise 
ordered, and a committee is appointed to report new rules 
during the session. The rules of the House of Representatives 
may be found in the Appendix of their Journal. 

The power to punish a member has been exercised by both 
Houses. William Blount, Senator from Tennessee, was ex- 
pelled in 1797, and Jesse D. Bright, Senator from Indiana, in 
1863. There were other cases during the war. 

It seems to be settled that a member may be expelled for any 
misdemeanor which, though not punishable by any statute, is 
inconsistent with the trust and duty of a member. 

The Constitution does not confer any express power to punish con- 
tempts, i. e., offenses by persons not members of the House; but this 
power has been considered to belong to the legislative assem- 
blies as such, and the Supreme Court has so decided. But 
the power to punish is held to extend only to imprisonment, and this only 
until the dissolution of the House by which the punishment is inflicted. 

Clause 3. — Each House shall keep a journal of its proceedings, 
and from time to time publish the same, excepting such parts as may 
in their judgment require secrecy ; and the yeas and nays of the mem- 



1 Rules H. R. Forty-ninth Congress, Second Session, page 247- 



70 THE CONSTITUTION. I. v. _i. 

bers of either House, on any question, s/iall, at the desire of one fifth 
of those present, be entered on the journal. 

It is usual for both Houses to have open sessions, except the 

Senate when in executive session, i. e., acting upon nomina- 

Open tions made by the President, or engaged in discus- 

Sessions. ^ on f treaties. The Convention that framed the 
Constitution sat with closed doors, and so did the Senate from 
the rjeginning of the First Congress until the second session of 
the Third Congress. 

There are different methods of voting in Congress. The 

usual method is viva voce, the presiding officer deciding by his 

ear. If he is doubtful as to the result, he makes 

Voting. a count, the members rising for that purpose. Or, 
if a member questions the correctness of his de- 
cision, a division of the House is called for, and tellers are ap- 
pointed who count the voters. But in important questions the 
roll of the House is called by the Clerk, and each members 
vote is recorded in the journal. This is voting by "Yeas and 
Nays. It enables the people to know how their representa- 
tives vote, and a permanent record of the votes is kept 

The Articles of Confederation required the yeas and nays to be taken 

when called for by a single member. The present provision, making 

Calling the die yeas and nays dependent on the call of one fifth the 

Yeas and members present, is a decided improvement on the former 

Nays. one _ a factions minority often avail themselves of this rule 

to delay proceedings, and prevent the passage of a bilk Thus, a member 

moves for adjournment, for example, and asks for the yeas and nays. If 

a fifth of those present concur in this request, the roll must be called, 

occupying much time. Oftentimes the member moving to adjourn votes 

against his own motion. Such a motion is called a dilatory motion. 

Clause 4. — Neither House, during the session of Congress, 
shall, without the consent of the other, adjourn for more than three 
days, nor to any other place than that in which the two Houses shall 
be sitting. 



I. VI. I. CONGRESSIONAL COMPENSATION. 7 1 

Under the Articles of Confederation, Congress could adjourn 
to any time within the year, and to any place within the United 
States, but no adjournment could be for a longer period than 
six months. The present provision prevents either House from 
interrupting, by adjournment, the progress of business. 

Sec. 6, Clause I. — The Senators and Representatives shall 
receive a co7?ipensation for their services, to be ascertained by law, 
and paid out of the Treasury of the United States. They shall, in 
all cases except treason, felony, and breach of the peace, be privileged 
from ai'rest during their attendance at the session of their respective 
Houses, and in going to and returning from the same ; and for any 
speech or debate in either House, they shall not be questioned in any 
otlur place. 

Under the Articles of Confederation, each State paid its own 
members of Congress. By providing for their payment from 
the national treasury, the Constitution makes them Compensa . 
independent of the States. In the Convention tion of 
Mr. Madison said, "he could not see any chance em 
of that stability in the general government, the want of which 
was a principal evil in the State governments," if the members 
were left dependent on the States for their compensation. 

In the British Parliament the members receive no compensa- 
tion. 1 And in our Convention, Gen. Pinckney suggested, as 
the Senatorial branch was to represent the wealth of the coun- 
try, that no salary be allowed. This was seconded by Dr. 
Franklin, but disagreed to, the vote standing six to five. 

The compensation is to be ascertained by law ; that is, Con- 
gress itself is authorized by the Constitution to determine it. 
The First Congress passed an act fixing the allowance at six 
dollars a day while in attendance, and six dollars for each 



1 Before the Restoration, 1C60, the members of the House of Commons were paid 
by their constituencies. 



- : 



r.-£ji : : ':•-'.: .\". : ::•". 



I. TL I. 



■ ::.-■ z t _ . : : :£ re: : .-..:._• 77: e ?pei>r: 

::* -ji: H:'3: :t;.iT ; jii= j.t; r ± e t ~. : : :. e ~ -;. .i :: 

f :. fill IT: ^ i-"-j i ::.":::- 

77e n:es Mr ;e±z :~i- ref repe^e-iTr. —jiVim: Lie ::~- 
::::::.:: ::: iizere::: peri: -is 15 f:ll:^5 

7::z: : - . : :: :::: i : : 

1817, $1,500 a jean 
1855, $8.00 a da] 
:5-'f. 5 : ::: 1 jeir. 
: ;-:. f: ::: 1 veir. 
1S74, $7,500 a year. 
, $5»°°° a J esr - 



: : : - 
: 5: 

: : - : 



ttrres kive received the same 
ear, 1795, ^hen the Senators 



/■-.■ :.•■_-.■".' :: 



: : ,-,:: ::::::. 7 

: .: t : 7 : " t . : : : - i : -. : .1 t : v : - ; : 

' t- r. :. : :>~z :t::::;:. r .:. :ri ::t:-::.:i : --"-- = 

. r_ t ~:r_i^.i :: : ±~y~-::_.: 

A_ ue ::: I t t v : : : :. : t i: 

bwt Ae one of iSoto, and tfcalt of 1873, weine 9ec$ i 



I : _ .: r . 1 " 

1S15- That of 

7 7i s± :::: 

: ■: - z.' zr~ 1 :~ 

1~1 : ±~ rtrfo" ".i- 



I. VI. 2. FREEDOM FROM ARREST. 73 

The privilege of freedom from arrest has belonged to legisla- 
tive bodies in Europe for many years. The exceptional cases 
are what are called indictable offenses. Whoever 

, . , tit Freedom from 

should cause the arrest of a member would be Arrest, 
liable for trespass, and might also be punished for 
contempt of the House. The privilege commences from the 
time of the election, and before the member takes his seat or is 
sworn. 

Freedom of debate is secured by this clause. But the privi- 
lege is confined to words spoken in the course of parliamentary 
proceedings, and does not cover things done beyond the place 
and limits of duty. 

The privilege from arrest secures the member, of course, 
against all process, the disobedience to which is punishable by 
attachment of the person, as a subpoena or a summons to serve 
on a jury. 1 

Clause 2. — No Senator or Representative shall, during the time 
for which he was elected, be appointed to any civil office under the 
authority of the United States which shall have been created, or the 
emoluments whereof shall have been increased, during such time ; 
and no perso7i holding any office under the United States shall be a 
member of either House, during his continuance in office. 

The first part of this clause was intended to prevent corrup- 
tion and secure the integrity of the members. It would tend 
to diminish the temptation to create lucrative offices which they 
themselves might hope to fill. But the security is only partial, 
as an office created during the term of a member might be held 
by him many years after his membership had expired. 

The acceptance of an office under the United States, by one 
who has been elected a member of Congress and has taken his 
seat, operates as a forfeiture of his seat. But if one holding 



1 Story, g860-g866. 
A. C— 7. 



74 THE CONSTITUTION. I. VII. I. 

an office under the United States is elected to Congress, he 

Cabinet offi- m ^ ^°^ ^ ie °^ ce unn l ne is ready to take his 
cers in the seat, when he must resign. 
u. s. and j n Q rea t Britain, the members of the Cabinet 

Great Britain. 

may also hold seats in Parliament, but our Consti- 
tution prohibits Cabinet officers from being members of Con- 
gress. The subject has been often discussed, but no serious 
attempt fid's been made to amend the Constitution in this re- 
spect. By the present arrangement, the Legislative and Execu- 
tive departments of the government are more widely separated, 
and any undue influence of the Executive is better guarded 
against. 

Sec. 7, Clause i. — All bills for raising revenue shall originate 
in the House of Representatives ; but the Senate may propose or 
coiicur with amendments, as on other bills. 

This is the practice in the British Parliament. All bills for 
raising revenue must originate in the House of Commons. 

The subject was discussed at great length in the 
Revenue. Convention, and was not finally decided till near 

the day of adjournment. It was so connected 
with other provisions of the Constitution as to render it difficult 
to ascertain by what principles it was settled. As first acted 
upon by the Convention, the clause was much more compre- 
hensive than in its present form : ' ' That all bills for raising or 
appropriating money, and for fixing the salaries of the officers 
of the government of the United States, shall originate in the 
first branch of the legislature, and shall not be altered or 
amended by the second branch." 

Our circumstances differ so widely from those of Great Britain that 
there seems to be no sufficient reason why the Senate may not originate 
bills for raising revenue as well as amend them ; why they may not pro- 
vide for raising revenue as well as make appropriations. During the 
third session of the Forty-first Congress, the Senate passed a bill to repeal 
the law imposing the income tax. But the House of Representatives, 



I. VII. 2. THE PRESIDENT AND LEGISLATION. 75 

instead of acting upon it in the usual way, passed a resolution calling the 
attention of the Senate to this clause of the Constitution. 

Bills looking to the raising of money have originated in the 
Senate and have passed into laws : as the bill to establish the 
post-office, that to establish the mint, and bills to regulate the 
sale of the public lands. Raising revenue is understood thus to 
be confined to levying taxes. 

Clause 2. — Every bill which shall have passed the House of 
Representatives and the Senate, shall, before it beco?ne a law, be 
presented to the President of the United States ; if he The Pres j dent 
approve he shall sign it, but if not he shall return it and Legisia- 
with his objections to that House in which it shall have 
originated, who shall enter the objections at large in their journal, 
and proceed to reconsider it. If, after such reconsideration, two 
thirds of that House shall agree to pass the bill, it shall be sent, 
together with the objections, to tfo other House, by which it shall 
likewise be reconsidered, and if approved by two thirds of that 
House it shall become a law. But in all such cases the votes of both 
Houses shall be determined by yeas and nays, and the names of the 
persons voting for a?td against the bill shall be entered on the journal 
of each House respectively. If any bill shall not be returned by the 
President within ten days {Sundays excepted) after it shall have 
been presented to him, the same shall be a law, in like manner as if 
he had signed it, unless the Congress, by their adjournment, prevent 
its return, in which case it shall not be a law. 

This clause gives the President some participation in legisla- 
tion. The Executive and Legislative departments are not 
entirely disjoined. But the President's participa- 
tion is negative. This returning of a bill with 
objections is called vetoing the bill, though the word veto does not 
occur in the Constitution. In Great Britain the sovereign pos- 
sesses an absolute veto, but it is said not to have been exercised 
since 1707, in the reign of Queen Anne. 



76 THE CONSTITUTION. I. VII. 2. 

In the Convention, various plans were discussed for revising the bills 
passed by Congress. One was to give the right of revising all bills to the 
Executive and the Judiciary. This was Mr. Randolph's plan, and was 
approved by Mr. Madison. Some members wished the President to have 
an absolute veto. At one time the Convention voted in favor of requir- 
ing a vote of three fourths of each House in order to pass a bill over the 
President's veto. 

The present method has commended itself to the people of 
the country. It is, doubtless, better than one admitting an un- 
qualified veto, and better than one that should 
6 states. require a three fourths vote in each House. The 
practice in the State governments is not uniform. 
In some the governor has no veto, while in others a bill may 
be passed over a veto by a bare majority in each House. In a 
third or more of the States the governor may veto one or more 
items in an appropriation bill and approve the others. 

The veto power has been used by most of the Presidents, 
though sparingly. In the first forty years, there were no bills 
vetoed by John Adams, Jefferson, or John Quincy Adams. 
Washington vetoed two bills ; Madison vetoed five and retained 
one ; Monroe vetoed one. No bill was passed over the veto of 
a President till the administration of Mr. Tyler. One was so 
passed in his administration; four in that of Mr. Pierce, and 
seventeen in that of Andrew Johnson. 

It has been decided by the Senate that two thirds of a quorum 
only were requisite to pass a bill over the President's veto, and 
not two thirds of the whole Senate. 

There are three methods by which a bill may become a law. 

(a) If it is passed by a majority of each House and is signed by 

the President, (b) Without the signature of the 

Methods of _. . . . r . w . . ° .. ir 

Legislation. President, if it receives the votes of two thirds of 
the members present of each House, after having 
been returned by the President with his objections, (c) If, 
having been passed by each House, and sent to the President, 
it is retained by him ten days (Sundays excepted), it becomes a 
a law, unless Congress has adjourned in the meantime. 



I. VII. 3. THE PRESIDENT MAY VETO. 77 

In some States the governor may sign a bill after the adjourn- 
ment of the legislature ; in New York, within thirty days. The 
Constitution of the United States is silent in regard to it. One 
instance, however, of approval of a bill by the President after 
the adjournment of Congress, is given in the Statutes — the act- 
approved March 12, 1863, nme days after the expiration of the 
Thirty-seventh Congress. 

Clause 3. — Every order, resolution, or vote, to which the con- 
currence of the Senate and House of Representatives may be neces- 
sary {except on a question of adjournment) shall be presented to the 
President of the United States, and before the same shall take effect 
shall be approved by him; or, being disapproved by him, shall be 
repassed by two thirds of the Senate and House of Representatives, 
according to the rules and limitations prescribed in the case of a 
bill. 

This clause prevents the passage of laws under the name of 
resolutions, etc., without the approval of the President. The 
process is the same, no matter what may be the 

. Resolutions 

term employed, whether order, resolution, vote, or Require the 
bill. Whatever does not relate to the internal A PP r °vai of 

--.,.. , t T _ . . the President. 

government of the individual House, as elections, 
votes of censure or thanks, etc., requires the signature of the 
President, or a two thirds majority in each House. A joint 
resolution, approved by the President, or duly passed without 
his approval, has all the effect of law. 

A resolution of Congress proposing an amendment to the Constitution 
does not require the signature- of the President, though in one or two 
cases such resolutions have been sent to him through inadvertence. In 
February, 1865, Congress passed a joint resolution that the electoral votes 
for President and Vice-president, given in certain States then in rebellion 
against the government, should not be received or counted. The Presi- 
dent approved the resolution, but said in a message that his approval was 
not necessary. (The electoral votes were counted on the eighth, though 
the official approval of the President was not received till the tenth.) In 
March, 1866, the two Houses determined that neither House should con- 
sider the credentials of any man presented as a member from a State 



78 THE CONSTITUTION. I. VIII. I. 

lately declared to be in rebellion, until Congress shall have decided that 
such State is entitled to representation therein. This resolution was not 

sent to the President. 

Sec. 8. — The Congress sliall have power — 

In Article I, Section i, it is declared that all legislative 
powers granted in the Constitution shall be vested in a Congress 
of the United States. In Section 8 it is declared 
of Congress, more specifically that Congress shall have power, /". e. , 
rightful authority 7 , to legislate on various subjects. 
But it is not intended that this shall be considered an exhaustive 
enumeration of the powers of Congress, or that Congress shall 
not legislate except on the matters here mentioned; for the 
eighteenth clause gives Congress power "To make all laws 
which shall be necessary and proper for carrying into execution 
the foregoing powers, and all other powe: d by this Con- 

stitution in the government of the United States, or in any 
department or officer thereof." The Constitution itself in other 
sections requires of Congress the exercise of powers not spe- 
cifically mentioned in this section ; and it implies in various 
places that Co: ^ oust do what it is nowhere in the Consti- 

tution expressly authorized to do. Some of these cases will be 
cited, and the subject will be still further discussed, in connec- 
tion with the consideration of the eighteenth clause. 

Clause i. — To lay and collect taxes, duties, imposts, and excises, 
to pay tlie debts and provide for the common defense and general 
welfare of t/ie United States ; but all duties, imposts, and excises 
shall be uniform througfwut the United States. 

Every civil government must have a revenue for its own 

support, and the subject of raising funds is appropriately placed 

in this first clause. Under the Articles of Confed- 

Taxation. eration the common treasury was supplied by the 

several States, in proportion to the value of the 

land with the buildings and improvements. Taxes were not 



I. VIII. I. TAXES, DUTIES, IMPORTS, AND EXCISES. 79 

laid and collected by the general government, but were levied 
by the authority and direction of the legislatures of the several 
States. The subject was discussed in the Convention with 
great earnestness, and the result was to give to Congress the 
control of the whole subject of taxation and revenue so far as 
relates to the administration of the general government. 

The obvious construction of the language of the clause makes 
it confer upon Congress the power to raise a revenue for the 
purpose of paying the debts and providing for the common 
defense and general welfare. This involves the power to pay 
the debts and provide for the general welfare. 

The four terms used, taxes, duties, imposts, and excises, were 
originally of nearly the same signification. They 
imply pecuniary burdens imposed by a civil gov- used, 
ernment upon its subjects. This clause distin- 
guishes between taxes and the others, inasmuch as it states that 
' ' all duties, imposts, and excises shall be uniform throughout the 
United States." In Article I, Section 2, Clause 3, Representa- 
tives and direct taxes are required to be apportioned among the 
several States in proportion to their population. 

In Political Economy, that is a direct tax which comes from 
the property of the nominal payer, while an indirect tax is 
assessed on one person but is really paid by A Direct Tax 
another. Duties on goods imported are indirect, in Political 
as the consumer pays them. Poll taxes and those conomy " 
imposed directly on property are direct. The provision of the 
Constitution as to direct taxes prevents our strict observance of 
this distinction ; and the courts have decided that taxes on 
carriages, for example, are not direct taxes, though Political 
Economy would so regard them. So, also, of taxes on 
incomes. It would be impossible to apportion such taxes 
among the States according to population. They must be 
uniform. By a recent decision of the Supreme Court, direct 
taxes, in the sense of the Constitution, are of two kinds only : 
(a) those on real property, and (b) capitation or poll taxes. 



8o THE COX533TOI3C 1 I. Till. X. 

The :.: ~:ed by the Sure rriverr^neziis. by ::_: lei :: : 

by cities an; ::~-=. z~± :';; 7 ...: -7; T:.r 

:::e: :^ 1 7 7 1 _ 7 5 I! tlr ^l::.". ^ ] "' rZZ.ZZiZ: ZTf £lz 

tfheDrited wholly from indirect taxation Congress nasnever 

levied : ztz.tr-1 ::.:. ; :. : '. the pr: perry ::" Are 
country. Until the war of the rebellion Ac p iyul govern- 
ment derived nearly all iti : 7 7 : . _ 7 . : :: : ::;. : . z - 1 z z : : :.. : -re- 
ported into the coimi: 



i.x nad been laid "but fcarr limes since die 

adoi : ; \; :.;-:: ; 

upon lands, nouses, and slaves. The amount of tax to 

f I I l/Url :r A : 

iu:, L.-.sessei -_jor. e^ii :•: ur~ ::' At Sr T -er;_ 

- en. I: of 179S ..:. on each slave was fifty 

In the A ~r*e ^jul^im u y ^rcp-d — -d"wellbag-honses, fa<»fl% and 

— ae valne. In each case t^ tax was in 

In Augnst, 1 861, after an interval c : z 1 : 

direct tax -was levied. Thi; : :. ::•= : 

the rebellion Tz. e _ : : re : — : e z zz.i : r~ e z ~ 

Direct Tax of . 

:Sf: millions of dollars 2 



I : und with their 
bouses. The amount "was apportioned 
Trr: ::: Art I _?tr: :: 1:1; . 

population, as reqnirec 7 Consliliilkm. 1 Tne law provided 

that any State or Territory might collect its quota, and be 
allowed fifteen per cent of Viae ai n omnfl, for Ae expense of col- 

:r_ Al ±t !:; ::.: 7: ' A.: 

and Colorado, assumed the payment of Ae tax. 3 Haas law, 
r ::. e n of an earlier period, was in force but one year. 



1 T: ! r_n r: _r z.z - 7 renouj a": -irppsTTig direct ttmr-h ; 

I "olun-bis. prior r: 15IL 

a £eport of Comzmssiimer off I"**"-^ n tewenu e far 1S3B, Jfflgt I 



I. VIII. I. IMPORT AND EXCISE DUTIES. 8l 

By act of July ist, 1862, its operation was suspended, save as 
to the collection of the first annual tax, until April ist, 1865. 1 
By act of June 30th, 1864, it was again suspended till Congress 
should take further action. 2 

The second act passed by Congress after the adoption of the 
Constitution was, "for laying a duty on goods, wares, and 
merchandises imported into the United States." 

,„' . ... , . 1 ,, . r 1 Import Duties 

All civilized nations adopt this as one of the of I?89> 
methods of raising revenue. There is a great 
diversity of opinion as to the articles upon which duties shall be 
levied; whether it is or is not expedient to impose duties upon 
those which would come into competition with the products of 
the country itself. It is worthy of notice that the act alluded 
to above, which was passed July 4th, 1789, had a preamble as 
follows: "Whereas, it is necessary for the support of govern- 
ment, for the discharge of the debts of the United States, and 
the encouragement and protection of manufactures, that duties 
be laid on goods, wares, and merchandises imported : Be it 
enacted," etc. 

We have seen that until 1861 direct taxes had been levied 
for only four years since the adoption of the Constitution ; but 
duties on goods imported have been collected from 

...._ Excise Duties 

the first, and have formed until recently the chief 
source of revenue. The term excises, though used in the Con- 
stitution, does not appear in the laws enacted by Congress. 
As commonly used, it signifies all taxes not direct, except duties 
on imports and exports. In a narrower meaning, it is a tax 
upon the production of commodities. Thus, distillers pay a tax 
of so much a gallon on the whisky they manufacture, and oil 
refiners have paid a similar tax. 

Before the war of the rebellion the great part of the revenue 
of the United States had come from duties on goods imported — 
"customs" duties. In July, 1862, an act was passed to 



Statutes at Large, XII, 489. 2 Ibid, XIII, 304. 



:; THi : lyfTiTV - :: :>. i.tmli 



4 Internal Revenue." :ni ■: -e : :ne-5 :i i nei: 

'"ir.:" :: i.y -i' :::::i imi-rs :i :; t:: mies mi :e:i~i- 
i:~i ii il;.: :i :::::::r ; :ii:e e:: e:: I: ~i.5 51 ::~"rr- 
hensive that die revenue produced by it in the year 1866 
1 :_-:: :.: .:e-i :: lie ei:n i:ii 5111 :: 5;:: ::: ::: 

I ne< : :' 11:5 >;-£ .-.: i :e-ei l^ii 11 2 :'e~ :i.fin:e- ; :e:":re. 

11:1x1 :i 1 '-":-- _m::e-i -:..- _i :":: :;.::: ~ii 1 11:7 :i 

:; 1: 1 fiin^e-i n :.:: Vi::ei ~:i:e-5 Ii :-:_ :.: mix e: — err 

:.:.:.:: 11: 111 e-5 ~ere .:.i :i f_n: rente in ;i Enm umi- 

.-.:•:-: .e 111 e 11: - -:- -\\- 1 

--.. I_!t5 i~s.--" 

In April, 1S02, am "Act to repeal tlie Internal Taxt 
:iit .:::~l :.::t ; :~ - .. : ;.; ; ::~-=s~: :_::: lit-; -t :;: ; . i;;tr.ic.s :: :t- 
: t: : ; ;.t ; i: i ::;;:- :;j:;:.rt : f:: ::. t ::; t :;:t : :' -•=■"•: ni. ini 
sfiaiMflwd ipeffiam,, pgrrfnrment r antd paper."" Bat in 1813 these were re- 

; : " :t : iz. 1 :z t : ~ ;e : :' _ : ;;;;_- ; : ; t: :: :_;t .■ :":::: ~ ;.- t: ; :; : .:.:;:■; 
:':: : :;t:--;t: . ..;- ;t :: .t:\- : ;' :i;t ; :t:. :.;/; i ~ : n;=~:L ;;:;ts. 
i; :::• ;t . : :; ~ ;.-.:':: ;:t; i.;;;it< :~ -l;:"i :;:;";_ ii~t< ~"t:t 
-t --.t. - ;. ; irt 7 ..- ::t.:.-.t-i u; : :j..l;s :r;;>:^t; ili«: io:~ i; : ;.-.ti; :i ; 
:-_"i; :_= li; r;ii i-il ; ~t: ~i;:i=s. 



::e: ::•;:• — :_-_e" ::e : i_le i i:: :: n lie runies : :' lie 
Vie: rn:er5 — ~ere rexnrei :: ;e ix::::n z~ 11 e ii::ie;i 
_iii 1 11m i 1 r : 11:151 17 i::e ::; 1 pn 51.11 
2 le ::.: .1 n~ ~: 5 e 1: .1 :ie rn:e. lie 5.111 e 



111.5: ': e 11: i -'->: 1 1 1 : : e : :' iie 5111 e 111 : 11: 
:i e ' :;• :ner m:e 1: :.:. e mie: :: :ie e:.i ~i::i ~i5 re- 
quired to pay a tax of one dollar, every one owning a gold 

:::i inn im : . ■:: 5111 m: 111 me: 111.51 :e :i ir:- 
portkm to the population rf the State. If two States are equal 
.1 : _ .1:1 lie it ::nei5 11151 :: lie leieri. 1 : ~ einiiei: 

lie Em e :hit: r 111:111: :: me:: :i:.r; 11:111 lie 111-15 
:: :ie ^n:e 1:1; ::::r:: ~::e 15 111:1 ir:ier~ 15 :i::e :: 
lie :ner. 

Tie 11: : :' Iieie-i ::' :*■:: —':..: : 1 irie: 1 lie:: :i:c :i 
the States and Temtoiies, provided also for an ixceme tax, be- 



I. VIII. 2. INTERNAL TAXES. 83 

lieved to be the first ever levied by our general government. 
The constitutionality of this act was questioned by some on the 
ground that in Political Economy an income tax 

f . J Income Tax. 

is regarded as a direct tax. The Supreme Court 
decided that it was not a direct tax in the sense of the Constitu- 
tion. The tax was three per cent per annum on the excess of 
income over eight hundred dollars. In 1865, it was changed to 
five per cent on the excess of income over six hundred dollars; 
but ten per cent on the excess over ten thousand. For the 
years 1870 and 187 1 it was two and a half per cent on the 
excess of income over two thousand dollars. No income tax 
has been levied since that for 187 1. The amount collected on 
this tax in 1866 was $61,000,000. 

The income to the government from internal revenue from 1791 to 
1849 was about $22,000,000, ranging from about $200 in 1843 t0 
$5,124,708 in 18 1 6. During the same period the income from customs 
was about $946,000,000. But in the year 1866 the income from internal 
revenue was over $309,000,000, that from customs being about $1 79,000,000. 
Since 1868 the receipts from customs have exceeded those from internal 
revenue, the tax having been taken off from various manufactured 
articles. For the year ending June 30, 1886, the return from customs 
was, in round numbers, $193,000,000, and that from internal revenue 
$117,000,000. The internal revenue tax now, 1887, falls wholly upon 
distilled and fermented spirits and tobacco. 

Clause 2. — To borrow money on the credit of the United States, 

In time of peace, the ordinary revenues of a nation should 
be sufficient to pay the expenses of its government ; but in time 
of war these will be insufficient, and debts must be 

..... . . - . Borrowing 

incurred. All nations possess this power of bor- Money, 
rowing money, and all have exercised it. The 
usual mode of making loans is to issue the bonds of the gov- 
ernment, which are its promises to pay the sums specified, at a 
given time, and with interest at given rates, payable semi- 
annually or quarterly. These bonds are then sold at the best 



84 the constttuti; i. ;:: 2. 

rates the government can command, usually at par or at a 

The United States have issued bonds from time to time since 

the formation of the government; though these were held by 

few persons until die war of the rebellion made 

""Bond*. ' large loans necessary. Then efforts were made to 

circulate them among the people, and with such 

success that multitudes purchased United States bonds who had 

never before seen securities of this character. The issues were 

of various denominations, $50, $100, $500, $1,000 and so on. 

The bonds of the United States can not be taxed by die 

State governments, according to a decision of the Supreme 

Court, even if the bonds themselves contain no stipulation to 

that effect. 

The public debt of the United States, on the first of January, 1 791, 
was about $75,000,000. In 1816, at the close of the war with England, 

;\ :_- ~z7 5-2- :•:•:. :■:•:. -::::-::;::::::: :~ t: :. ti:~ 
The Public ^^ entirely paid. In 1861 the debt was $90,000,000, and 

in 1866 it was $2,773,000,000. On the first of July, 1886, 
it was $1,282,145,840. The advantages of this method of distributing 
the payment of a debt over a period of years are obvious. The country 
is every year becoming richer, and thus more able to pay off its indebted- 
ness. What would have been an insupportable burden at the creation of 
the debt, becomes, in the lapse of years, tolerable and easy. At the 
same time, the temptation to postpone unduly the payment of principal 
should be steadily resisted. The ordinary expenses of the government 
wfll always call for heavy taxes, without adding to them interest on 
it: :.-. 

: the close of the war the government was paying six per 

cent interest on nearly all its indebtedness; but die country 

^^ has advanced so rapidly in material prosperity, 

meat in Good and the national finances have been so wisely 

Credit - managed, that the latest loans have been made at 

three per cent. 

A portion of our present public debt is in the form of 
Treasury Notes, commonly called legal tenders, which are cir- 



I. VIII. 3. POWER TO REGULATE COMMERCE. 85 

culated as money, and on which the government pays no 
interest. The power to issue these comes from this clause (to 
borrow money) but it will be more convenient to consider them 
under another clause. (See page 101.) 

Clause 3. — To regulate commerce with foreign nations, and 
among the several States, and with the Indian tribes. 

Prior to the adoption of the Constitution the power to regu- 
late commerce was not in Congress, but in the several States. 
Each State was able to make such regulations as its commerce 
own interests seemed to require, without regard to before the 
the influence upon its neighbors. "The States 
through whose ports the natural or artificial channels of trade 
principally passed, were able to exact a revenue from those 
which were less favorably situated for commercial purposes." 
It was on account of the difficulties and irritations growing out 
of these commercial regulations that a Convention of Com- 
missioners from various States was held at Annapolis in Septem- 
ber, 1786, which Convention recommended the one that framed 
the present Constitution in the year 1787. 

As appears from this third clause, the whole control of the 
subject of commerce, both with foreign nations, among the 
several States, and with the Indian tribes, is placed controlled now 
by the Constitution not with the States but with the b y Congress. 
General Government. Under the Articles of Confederation, 
each State levied duties on imports and exports as it pleased, 
and this, not only as regarded foreign countries, but with refer- 
ence to commerce between contiguous States. But now there 
can be no restrictions on trade between two States, and all 
duties on goods imported from other countries must be "uni- 
form." The Nation has the exclusive power over commerce, 
and without this it would hardly deserve the name of a nation. 

"To regulate" commerce is to prescribe rules by which it is 
to be carried on. "With foreign nations" means with the 
people of those nations. Congress, and not the States, pre- 



:ammr: 'ad nte - 

- . - - 

- " - 

cade - in i 

- 

ajrai: ~ bar goes, jon-umanwiisr in cu t an col caasn: 

7 - - j:. - 

GonnennL fimifr^ 

faic . nrncTiar . even 

zxeefc mx . ._--.-... nire 

... n__" 

jtuig t jhmh v met mntiyes far ease 

-legaticr- ~as ione -rpaac nor zonteai- 

jrafa ins— 

._r";~n .__ . . -.7. - ;\./r . ~c= :;; :_"_;\;; ~ vn : ~:.r-'.:::-_""_r"-'\ :~~ 

xrni j mere xnd 

rutticr. 

.".: I -•■.-. - r : : 

i 

.mm etna re- 



■ - 

: : 
7 



I. VIII. 4. NATURALIZATION. 87 

Under the power "to regulate commerce," Congress thus 
passed a law prohibiting every American merchant-vessel from 
leaving port; and this, not for a limited period, but without 
limitation of time. It was repealed, however, in March, 1809, 
the act going into effect in June of the same year. 

An act to prohibit the importation of certain goods from Great Britain 
and her colonies was passed in April, 1806 ; and one to interdict the com- 
mercial intercourse between the United States and Great Britain and 
France was passed in March, 1809. 

For the fiscal year ending June 30th, 1886, the total value of exports 
was $665,964,529, and of imports $635,436,136. 

The power to regulate commerce with the Indian tribes is 
given to Congress. The exclusive right of preemption to the 
Indian lands is with Congress, and neither States nor individ- 
uals can purchase lands from the Indians. An Indian tribe is 
not a foreign nation, but a people in a condition of dependence 
or pupilage, sustaining to the United States the relation of a 
ward to a guardian. 

Clause 4. — To establish a uniform rule of naturalization, and 
uniform laws on the subject of bankruptcies throughout the United 
States. 

Naturalization is the conferring of citizenship. By it an 
alien or foreigner is made a citizen. Neither the Constitution 
nor any act of Congress defines citizenship. The 

. . . Citizenship. 

Fourteenth Amendment declares who are citizens, 
but gives no definition of the term. "All persons born or 
naturalized in the United States, and subject to the jurisdiction 
thereof, are citizens of the United States, and of the States 
wherein they reside." ''Citizens, under our Constitution and 
laws, means free inhabitants born within the United States, or 
naturalized under the laws of Congress." (Kent.) "A citizen 
is a member of the body politic, bound to allegiance on the one 
side, and entitled to protection on the other." (Attorney- 
General Bates.) 



i-i i. " ::: _ 

ituralizt I son 

." -.- ar a 
. t ■ r a citizen c<: 

r : ■_ : : - - 

" : : : H 

mam- 
i - 33ri Ksohmai 

: □ : m . - - 

- 

:' riiiMHitoJMp 2m\ 

- 

immiii a 

7 - - - - 

-■_;"". z 



Ir : ~ :- : " 

; : -/ a . be :: - 

twj.t ears. I 

now aegmrt- 

Tie ana3e of i»*i itr«tE«irtli,iH reqmref e alien shall 

tz:;: : r : — 

zhangec to two in 

Mods of Kat- 
uiaiizarior. : - — tJfltt, D0Q OhA 

- 

- 
rencmnca . 



I. VIII. 4. NATURALIZATION. 89 

thirdly, that the court admitting him shall be satisfied that he 
has resided five years within the United States, and one year in 
the State or Territory where the court is held, and that he has 
behaved as a man of good moral character. 

By naturalization an alien becomes a citizen of the United 
States. He is thereby a citizen of any State where he shall 
reside. 

The children of persons duly naturalized, who were under 
twenty-one at the date of such naturalization, shall be consid- 
ered citizens, if residing in the United States. 

An alien, coming to this country when a minor, who shall have resided 

in the United States three years next preceding his arriving at the age of 

twenty-one, and who shall have continued to reside therein 

. . r , . i- • r i • 1 Minors, 

to the time of his application, may, alter he arrives at the 

age of twenty-one, and after he shall have resided five years in the United 

States, be admitted a citizen without the previous declaration. A woman 

who might lawfully be naturalized under the existing laws, married to a 

citizen, shall be deemed a citizen. 1 

The children of citizens of the United States shall be consid-, 
ered citizens, though born abroad. -J 

If an alien who has made his declaration of intention to be- 
come a citizen die before he is actually naturalized, his widow 
and children shall be considered as citizens upon taking the 
oaths prescribed by law. , 

No alien, who shall be a native citizen or subject of any country with 
which the United States shall be at war at the time of his application, 
shall be then admitted to citizenship. 

A soldier of the age of twenty-one years and upward, regularly dis- 
charged from the army of the United States, may be admitted to citizen- 
ship without a previous declaration of intention, and with a single year's 
residence. 

A seaman, having served three years on a merchant ship of the United 
States, after making a declaration, may be naturalized. After a declara- 
tion, a seaman shall be deemed an American citizen for purposes of pro- 
tection. 



1 U. S. Statutes, X. page G04. 
A. C— 9. 



9<D THE CONSTITUTION. I. VIII. 4. 

The admission to citizenship of those who have been subjects 

of other governments, implies the right of expatriation. This 

right has been denied by some of the European 

Expatriation. ° . r 

states, and the claim maintained that American 
naturalized citizens still owe allegiance to the countries where 
they formerly resided. In July, 1868, an act of Congress was 
passed expressly declaring the right of expatriation, and that 
1 ' All naturalized citizens of the United States, while in foreign 
states, shall be entitled to, and shall receive from this govern- 
ment, the same protection of persons and property that is 
accorded to native-born citizens in like situations and circum- 
stances." 

Within a few years treaties have been made by the United 
States with a number of other nations, in which provision is 
made for the mutual naturalization of citizens, thus recognizing 
the right of expatriation. These treaties provide against the 
return of naturalized foreigners to their original country for 
residence while remaining subjects of the foreign country. A 
residence of two years in the original country is held to be the 
renunciation of naturalization in the adopted country. 

Though the Constitution gives to Congress the whole control of the 

subject of naturalization, with no limitation as to those who may be 

admitted to citizenship, every law enacted, from 1790 to 

Africans and lg restr icted it to whites. By act of July 14th, 1870, 
Chinese. . J J J 

it was provided: "That the naturalization laws are 

hereby extended to aliens of African nativity, and to persons of African 

descent." As the original statute limited naturalization to white aliens, 

and the act of 1870 extended it to those of African descent, the question 

has arisen whether the Chinese may be naturalized. This was decided 

differently by different courts ; some holding that the Chinese were white, 

others that they were not. In 1882 a law was passed declaring that no 

court should admit Chinese to citizenship. The same act suspended for 

ten years the immigration of Chinese laborers to the United States. 

Mr. Curtis, in his History of the Constitution, says, "The 
power that was given, by unanimous consent, over the subject 



I. VIII. 4. NATURALIZATION. 91 

of naturalization, shews the strong purpose that was entertained 
of vesting in the national authority an efficient practical control 
over the States in respect to the political rights to 
be conceded to persons not natives of the coun- Suffrage?" 
try." In a note he says : "I have called the nat- 
uralization power a practical control upon the States in the 
matter of suffrage. It is indirect, but it is effectual ; for I be- 
lieve that no State has ever gone so far as, by express statutory 
or constitutional provision, to admit to the right of voting 
persons of foreign birth who are not naturalized citizens of the 
United States." 1 Mr. Curtis is, doubtless, right in his opinion 
that an alien ought not to be allowed to vote ; but he is wrong 
in the statement that no State has extended the right of voting 
to persons of foreign birth not naturalized. In a third or more 
of the States this right is enjoyed. The constitution of Indiana 
permits an alien to vote who has been one year in the United 
States and six months in Indiana, and who has declared his 
purpose to become a citizen of the United States. The new 
constitution of Illinois restricts suffrage to citizens of the 
United States. The same is true in Ohio. 

By the common law, an alien could not hold real estate ; and in some 
of the States a special act of the legislature is necessary to 
enable an alien to hold such property. But other States ^ li ^"f and 
have provided by statute that no difference in this respect 
shall exist between an alien and a citizen. 

Naturalization removes the disabilities of alienage, and con- 
fers, with one or two exceptions, all the rights and privileges 
pertaining to the native-born citizen. A naturalized citizen can 
not hold the office of President or Vice-president of the United 
States, nor can he be a Representative or Senator in Congress 
till he has been a citizen for a term of years. 


1 History of the Constitution, II. page 202. 



:: --^ : :. I. thl 4. 

~ ".: ... .t :'-...: :.i_:t ::' lit Zzzstrizziz i-.-iinitr rin^tiE :: 
4g etitahfeh a mnfflfomn rule of natnializatioiv^ and such a rale 

m _ a c ii: :::: er^rlifjir-f rin-rrrf— i_ii tztr:;i.t;i :lit 

t:~t: :: :::i"i: zzizzrirzizzz ~~.11 : _: :::::: 
to the nde. Foreign aeniimy has repeatedly been 

:.::::::::::: .1:: :i: V:.::_ :j rr:~ 11: ::i:r^.f.t 21: ±r 
•..1.1.1: .:n if : :' ~ 11.1: t ■ "tr :i:t :: itf::.;:i. :i :.:zzti ~~ii 11 t 
lights of atnenship- The President and Senate hare thus 

: :_t : : ~ rtitrtriit :.: nt f t :- 

1::.- ::' ;.:: 1:: zztsizizzzzz lit z:ce :: 1: .zulni: :i S-: 
Texas, with all its people, was admitted into the Union by 

:.i: :t':._i:i :: ,:zzzr-.~. Af nt ::::::. ;::ii:i 115 
it : ~ 1 : A :i_: f "ts : : : : _i . . 

it itiii: :: t:: 1 . :..: : ::.\ 

ir: 7 : ; f 7i;.:-;ii: nt : : - tz : :' . : i_ : t : ; : 7 ; - .t 
; t : 1 

~~ ::": .iiitt:: :; : ;:: 1 mr:i: .: _ ~ :: i:ii:i imts 
: 'j.— : .At : : : -;. . 

1 — —.--*. .1 fiiiT :: nt i.itf m lit :::_t :: i::.;i._".:i in 
laierf ±1= '.t: : i_ :: ::: i-i:: ::" 1117 :: :--ti: " ::t: 



Z'.zy — .--:.::._ :: jl.i. - nt :tm 

;;.; : ; :: r:::; : — 1: ::_!£ 1:: :: ~ :iA: 1:: ;.iy 
- 1 . . t 11 t — : r i ; .' ' . .- : 11 1 .: tt! : : 'ti::: 1 : : 
-- ; : t 7 1 : 1 : - ~ii :t •: : -zzzzzri in lit i .: 5 : 

_ : i^.-tff : 1 it : t .: .1 ::•:•: I: :tA: 
1 ;::i:i :r:>trf miA: iztrf. ti: T 

;.; : ; - ; f_:i "~~" " ~"~.' ZZZ 111 TI 1.. 1 -7-115 



Iif .:: , ;it 15. ■■ If 2117 irrvi :~ -HZ it'zzs.' t::. 

7 : : : t ..:. : :. 7 Y 2 . - : : - 't ■ ~ i.*~t ".'.". 7 

" 5 — 1 : z. " r ~r: : _ ; ~~ : iz~~Jls if~ :: :t::::"-.. : 1:: tiii-it-i _n "lit 
-..: - t Z li :: ri.:t~ -.::.:.. - :-t: :: - ir_i,:>in: -1: is 
* -:: Alt :: : :~ Af A:- 7: :e: 1:7 - 

:z Af :~- : ::::'::::: 

7t _~ AAirA : :c ."-:.:. : -7 :r::e _L"~ :~:.: .- .t-i ~- 



I. VIII. 4. BANKRUPTCY. 93 

Register in Bankruptcy. Insolvency thus naturally precedes bankruptcy. 
A man seeks to avail himself of the bankrupt act because he is insolvent, 
and many are insolvent who are never adjudged bankrupts. 

The Constitution gives to Congress the power to pass uniform 
laws on the subject. Prior to the adoption of the Constitution, 
the power was exercised by the several States. Three bankrupt 
laws have been enacted by Congress ; the last was repealed in 
1878, and the three were in force only about sixteen years. 

Some of the States have had laws in regard to insolvency, which have 

been for the relief of unfortunate debtors. It has been held that the 

States might pass laws on the subject, provided they did 

, „ ■ r , ,, • , o State Insolv- 

not contravene the Constitution of the United btates, or „„«. T _.„„ 

ent Laws. 

the provisions of any law of Congress in force at the time. 
A State might thus pass laws releasing the person of the debtor from im- 
prisonment, or releasing property which he might acquire from debts 
which he should contract after the passage of the law. But a State 
could not release a debtor from debts already incurred, nor could it pass 
laws affecting the citizens of other States. Congress, however, is subject 
to no such limitation. While the Constitution prohibits States from pass- 
ing laws which impair the obligation of contracts, there is no such pro- 
hibition on Congress. 

A bankrupt law is intended for the benefit of both creditors 
and debtors. It benefits the creditors by securing among them 
an equitable distribution of the property of the 0bect of a 
debtor. It benefits the debtor by releasing him Bankrupt 
from hopeless insolvency, and giving him an op- Law- 
portunity again to engage in business. The laws of 1841 and 
1867 provided for voluntary and involuntary bankruptcy alike. 

The bankrupt, after the various requirements of the law have 
been complied with, receives a "discharge" from 
his debts. Usually some consent of the creditors creditors, 
is necessary. The law of 1867 provided that if 
the assets were not equal to half the liabilities the assent of 
a majority of the creditors in number and value must be 
given. 



94 THE CONSTITUTION. I. VIII. 5. 

It is to be feared that debtors, in our country, are released too easily 

from their obligations. " In England, bankruptcy is a more serious 

matter. The bankrupt not only loses credit ; he also, to a 
Bankruptcy in 

_ great extent, loses caste. ... In r ranee, the lot of the 

bankrupt is still more severe ; not only does he lose his 
social position, but the law prevents him from engaging in any other busi- 
ness on his own account till he has redeemed his outstanding obliga- 
tions." * 

But even the English laws are far too lenient, according to the opinion 
of an eminent writer. "It is seldom difficult for a dishonest debtor, by 

an understanding with one or more of his creditors, or by 
Language of 
Mr. Mill. means ot pretended creditors set up for the purpose, to 

abstract a part, perhaps the greatest part, of his assets 
from the general fund through the forms of the law itself. ... To 
have been trusted with money or money's worth, and to have lost or 
spent it, is prima facie evidence of something wrong, and it is not for the 
creditor to prove, which he can not do in one case out of ten, that there 
has been criminality, but for the debtor to rebut the presumption by lay- 
ing open the whole state of his affairs, and showing either that there has 
been no misconduct, or that the misconduct has been of an excusable 
kind." 2 

The distinction between a legal obligation and a moral one 
must not be overlooked. The law may discharge the bankrupt 
from his debts, but there still rests upon him the moral obliga- 
tion to satisfy the claims of his creditors, so far as it may be 
in his power. The legal discharge puts him in a position to 
accumulate again, and thus furnishes him the opportunity to 
provide the means with which to pay his debts in whole or in 
part. Some make this right use of the advantage which the 
law gives them, but many regard the legal discharge from their 
debts as a release, also, from their moral obligations. Bank- 
ruptcy is a test, though a severe one, of a man's real character. 

Clause 5. — To coin ?noney, regulate the value thereof and of 
foreign coin, and fix the standard of weights a?id measures. 



1 Bo wen's American Political Economy, page 211. 

2 Mill's Political Economy, II. pages 473, 476. 



I. VIII. 5. THE POWER TO COIN MONEY. 95 

To Congress is here given the power to coin money. Else- 
where in the Constitution (Art. I. Sec. 10, Clause i) the States 
are forbidden to "coin money," or "make any 

. . Money what? 

thing but gold and silver com a tender in payment 
of debts." According to the Constitution, then, money is gold 
or silver, coined by the general government, and made a tender in 
payment of debts. Whatever fails to possess these three charac- 
teristics is not strictly money. A promise to pay, whether by 
the government or a bank, though the law may make it legal 
tender, is not money, but only a promise to pay money. Gold, 
as bullion, — that is, in any form but that of coin — is not money, 
though it may have the value of the same weight of gold 
coin. 

Under the Articles of Confederation, the power of coining 
money was possessed by Congress and the States jointly, 
though Congress had ' ' the sole and exclusive right _. s nish 
and power of regulating the alloy and value of Dollar the 
coin struck by their own authority, or by that of Unit * 
the respective States." The power had not been exercised either 
by Congress or the States prior to the Constitution. Coin of 
other countries was used, the Continental Congress regarding 
the Spanish dollar, or "piece of eight," as the money unit. 
There was no official action on the subject till 1785, when Con- 
gress resolved that the dollar should be the money unit, and 
that the decimal system should be followed. A year later the 
dollar was defined by prescribing its weight in grains in each 
metal. But no coins were issued of either gold or silver. 

The first act of Congress under this clause was the coinage 
act of 1792. This prescribed what coins should be issued of 
gold, of silver, and of copper, and their respective 

• 1 T • i 1 i r • ii Tne Coinage 

weights, it provided also for coinage by the es- Act of I7g2> 
tablishment of a mint at Philadelphia, where Con- 
gress was then in session. This has never been removed, 
though Washington became the seat of government in 1800. 
Branch mints have since been established in various places. 



g6 THE DONSIIIUIKM I.Vin. r 

The coinage act of : - : : made both gold and silver coin legal 

tender for all sums. In the gold coins which at East were 

, three, the eagle ten iollars . the de 2nd 

Both Gold and ^= v " 

tr Coins the quarter-eagle, there woe :_ r grains I roy) of 
Legal T\ ■ ii i _ _. re gpjj t0 ^ dollar. j n :e sfivei :: -5 "hich 

re fiie i:Ilar. the half-dollar, the quarter, the :. ne disme" 
in the statute), and the half-dime, there were : - :- grains of 
pore silver to the dollar. The silver coins conta. ■: fifteen 

times as many grains of pure me die gold coins of the 

mount, showing that in : it _::\_ 

ounce of gold north at dial ::me in the markets of the 

world fifteen times as much as an ounce of sflvei As iebfcs 
might be paid in either gold c: at the option of the pa- 

's necessary- dial die fcwc Masses :f coin should have : 

the ; ■ db r 
jongif : :: ■ i the value of mone 

re our mor.: rioted to one metal there would be no 

occasion for the exercise of this power. W 
thev; , gold a :nly mo n e y , :*:: example, C 

to Fix the would simply determine the number : :' 

iiilar should contain, but could do nothing :: 
regulate or determine its v a t : r purchasing power. Wh 
however are to be Congress d 

resenbe their respective weig nd in this sense, but in no 

other, can it "regulate die value of money. 7. 
that was done in 1792. 7 _/.: : f die gok ."having 

first been decided on. that of the silver dollar must be mad: I 
correspond; that is. the ratio of the comme::: x of the 

two metals must I e [ 1 e s erved. To prescribe arbitrarily the 
relative we:.:: ; -~ould be monstrous: for. as Jefferson 53 
' ; the proportion between the vain es : : gold n 1 zier- 

cantile problem altogether." 

7 few rears ± :ld began to increase in value relatively 
to silver at an ounce : :' g n fifteen 

ounce? . :" afcver. In consequence, the gold coins began to dis- 






I. VIII. 5. AMERICAN COIN. 97 

appear from circulation, being melted up or exported. To 
keep both metals in circulation as money it was necessary either 
to put less gold into the gold coins or more silver 
into the silver ones. The former method, which' value of Gold 
was the only just one, was adopted. increases. 



If gold had been the single standard, or the standard, the silver should 
have been made to correspond to it, and so the silver dollar increased in 
weight. But both metals being by law full legal tender were equal stand- 
ards ; when, therefore, the gold ceased to circulate, the silver became 
practically the single standard, and all contracts were made with reference 
to that. To have made a heavier silver dollar would have been unjust to 
all who had money to pay. To make a lighter gold dollar was strictly 
just to all. 

This change was brought about in 1834. The gold coins 
were reduced from 2<\\ grains of pure gold to the dollar to 23^- 
grains. As the number of grains of pure silver in 
the silver dollar remained 371^ as before, the ratio Reduced in 
between the two metals was changed from 15 to 1 1834. 

to that of 16 to 1. 

But presently the equilibrium was again disturbed, silver hav- 
ing become worth more than the one sixteenth part of gold. 
This was owing, in part at least, to the large The Relativ 
amount of gold from the Australian and Cali- Value of silver 
fornian mines. If both gold and silver are to be Incre ases. 
retained as full legal tender, the silver coins must be reduced 
in weight as those of gold were in 1834. There was another 
method, however, — to make gold alone the legal standard, and 
have the silver coins subsidiary. This method was preferred by 
the government; and in 185 1 the Secretary of the Treasury 
recommended that the silver coins be reduced in weight, and be 
made legal tender for small sums only. 

A bill was accordingly prepared which became a law Febru- 
ary 2 1 st, 1853, providing that two half-dollars, four quarters, 

etc., should contain 345.6 grains of pure silver instead of 371+; 
a. c— 9. 



[ ■ -- 



; : ztez : : n st:tvt: : : i. tic j 

in in: iirii : iif n : __ i : t i Itii :::::: :":: :zl~ .ii i:.~ 
7 he 1 jHot was not mentioned in due art, and an 

c»x. remained as a nominal com,, bnt it fanned fkom 

n- :.: = .:. in: iir i: - n if in 1 1 : _i : .11. j i: : : : - :: 11 
--' ~-~- z - ;: imv '_-_ :iii iiei: i:::ii" ;.::i:: in 

: ■ " t . . : .. - 7 7 I ■ . 7 1 : 

:~i li i.7 ii :ii:::: .1 :5:: _ n: it.i.: mit i 

It; ::: ;i i:i~ > ~~ ~ is 

— ii :iii 1:1.1. :i_" irn:ieiii-i n : y in :r : - 
:- ii-ri ::.i ii : i m :::i7in:i7 Ii : ;- : i 
general coinage act was passed,, winch, prohibited 
:.i : i n :: nj i._i i : : .iirinir i n n. 1:1 
.-_: :.i f 1 7: 1 . 
: 7 7 7 7 1 7 : 7 ; 

11: ".7 i:.i 1.1; 11:11 - :- iit _i: :: niir 

: - . : 1 ..':.-- 7 : - - 7 .: 

:. 1 7 : 111 111 1 r 1 . .1 77 1 I 1:". Ill -l.—I 1 111. 

111: iiri riiii :: i. i: 11 niir i in: in 

-- _~ ... : . • : . - 7 : . ■ : t 

irini : i: "i ; ~i 11 : 11 ": r .:.i; _ 11 

_.i : 7 ' : i 1. 1 : . i . 

-i 7 7: .7i" - i • •.::.... :: z~t z .-.- i A*:«: 11 



:.:: — m lie: miiii: -_: ii: : _: 11 ;_.::.::. 

ii : 7 in : 7 1 1 i -i :i H : lie 

~'\ z 1 . tr in 1 :; :_= ::::;:: :'--.— i- - : :" _t v-::r 

T. 



..■;: : : . 77. : . . 7 . 1.7 ; ; : .- : : : 77 : 7 : i . " t7 ; : .7 : : : • " . _: ; .: vxi 7 r 



.:7 : -. : v ; 



I. VIII. 5. AMERICAN COIN. 99 

purpose of making gold the single standard. As the dollar coin remained 
on the statute-book, repeatedly between 1853 and 1873 the financial 
officers of the Government urged Congress to drop that coin or reduce its 
weight to that of two half-dollars. When, in accordance with these recom- 
mendations, it was dropped in 1873, the "trade dollar," a silver coin a 
trifle heavier than the old dollar, was provided for trade 
with China. This was a legal tender at first, but has not Trade 

o c t • r ■ 1.. t. Dollar, 

been since 1876. It was an instance 01 a coin which was 

not money, not even token money. Early in 1887 Congress authorized 
standard silver dollars to be given in exchange for the trade dollars. 

All our gold and silver coins contain one tenth of alloy, and 
are thus said to be nine tenths fine. The value of the coin 
depends entirely upon the pure metal which it con- 

... . . ... . , Alloy of Coins 

tarns, though the weight usually given is the 0ne Ten th. 
standard weight, i. <?., the weight of both pure 
metal and alloy. Thus, the gold dollar has 25.8 grains of 
standard and 23.22 grains of pure gold; and the silver dollar 
has 41 z\ grains of standard and 371 \ grains of pure silver. 
The silver coins less than a dollar have 385.8 grains (or 25 
grams) of standard silver to the dollar. Prior to 1837 the alloy 
of our gold coins was one twelfth, and that of the silver coins 
a little more than one tenth. 1 

All our gold coins and the silver dollar are legal tender for 
all sums; the smaller silver coins are legal tender for small 
sums only, and are hence called subsidiary or 

. • . . . Subsidiary 

token coins, rrom 1853 to 1879 they were legal coins, 
tender for $5.00; since 1879, for $10.00. These 
smaller coins, whose nominal value is much greater than their 
real, are redeemable when presented in sums of $20.00 and 
upwards, and thus are kept in circulation. The nickel and 
copper pieces, called "minor coins," are legal tender for 
twenty-five cents. 



1 The alloy of French coins is one tenth for gold and silver, except that the subsid- 
iary silver coins are T 8 jj 3 s 5 fine. The alloy of English gold is one twelfth, and that of 
silver three fortieths. 



IOO THE CONSTITUTION. I. VIII. 5. 

Until 1853 there was free coinage of both gold and silver; 

that is, any owner of bullion could take it to the mint and have 

Free Coinage ** come d for him, receiving in coin the full weight 

of Gold, but of the bullion. The same is true still as to gold, 

not of saver. but not as tQ s ji ver# jhe government coins no 

gold for itself, but for the owners of bullion. But silver, whose 
metallic or commercial value is so much below its nominal 
value, is coined exclusively for the government, being pur- 
chased in the open market. 

The act of 1878, which restored the silver dollar, required the purchase 

and coining of not less than two million nor more than four million dol- 

Silver Dollars l ars ' worth of silver bullion a month. This bill, as it 

Virtually passed the House, provided for the free coinage of silver; 

Subsidiary. it was called the Bland bm< But the Senate, under the 

lead of Mr. Allison, struck out that provision. The silver dollar coins, 
though full legal tender, are not on an equality with gold coins. The 
declaration of the act of 1873, that the gold dollar is " the unit of value," 
was not changed by the act of 1878. The silver dollars are virtually 
subsidiary, being coined like the smaller coins from bullion purchased by 
the Government, and being kept in circulation by the fact that they are 
practically redeemable in gold, which is the real money of the country. 

Gold coin and bullion may, by the law of 1863, be deposited 

in the treasury, and certificates of deposit in sums of not less 

Gold and tnan $ 20 - 00 he received in exchange. In 1878 

silver silver certificates were authorized in like manner 

for $10.00 and upwards in exchange for silver 

dollars. By act of 1886 silver certificates may be issued for 

one, two, and five dollars. These certificates are not legal 

tender, but are received for all government dues. 

Foreign Coin. — The value of foreign coin is "regulated" by 

establishing the rates at which it shall be received for duties on 

goods imported and in payment for public lands 

Regulation of , . _, . .......... . 

Foreign Coin. sold. Such rates were established in 1789, and 
have been modified from time to time to corre- 
spond with the changes in the coin of different nations. The 



I. VIII. 5. FOREIGN COIN. IOI 

rates depend on the metallic value of the foreign coin. Thus 
the sovereign, or pound sterling, of Great Britain, is taken at 
$4.86 t 6 q 5 q, because that is the exact value (expressed in Ameri- 
can coin) of the gold it contains. Of course, Congress does 
not attempt to regulate the value of foreign silver coin. No 
such coin has been taken as money by our Government for a 
long time. The commerce of the world is carried on wholly in 
gold. 

Between 1793 and 1857 the coin of various countries was 
legal tender, though from 181 9 to 1834 this was true only of 
silver. Since 1857 no foreign coin has been a No Foreign 
legal tender. The smaller Spanish coins — the Coin Legal 
quarters, eighths, and sixteenths of the Spanish ender Now 
dollar — formed a large part of the silver change of the country 
till 1857, though our American quarters, dimes, and half-dimes 
were issued as early as 1794. In that year the Spanish coins 
were ordered to be taken at the treasury and at the post-office 
at only twenty, ten, and five cents respectively. They were 
not paid out, but recoined into American money. 

Under Clause 2 of the present section, which authorizes Con- 
gress to borrow money, we have spoken of the issues of 
Treasury notes. Such notes have been repeatedly 

. n . Treasury 

issued by the general government, the notes being Notes. 
of various denominations, generally redeemable in 
a year or other short period, though sometimes with the time of 
redemption left indefinite. Generally they have borne interest, 
but not always. They were receivable by the United States for 
all taxes and duties, and for public lands, and were paid out to 
such creditors as were willing to receive them at par. In most 
cases they were made payable to order, and were transferable 
by delivery and endorsement, though some were made pay- 
able to bearer and were transferable by delivery. 

These Treasury notes are what the Constitution calls "bills 
of credit." The States are forbidden to "emit bills of credit," 



: : : the cosrsTrroriosr. I . 

as well as to " coin money," and to "make any thing but gold 

izi silver i :±z.L±z :n yiynirn: : :" It! is. The Constitution 

z 1-ie; the :: :.:-..::■. i; ::' z:irv inim;: ilit i-:-nrtr= :: 



Crti.V _~:~~:rf.= . : 111 siys r. ::r„-; m :r:::: :; iiti: 15.su- 

ing bills of credit. In the draft of the Constitu- 
-:-. :..': ztz-inti :y 1.1 1 ::~~:r:rr : :' i±:ii.. ir.rrtss --;.= 
anthorized to " borrow money and emit bills on the credit of 
::.r Vii:ei Si-iies I _: ±e l-:ir: ;::ri ~^= srr.ikrii m: :y i 
vote of nine States to two. 11 

Bilk of credit were issued by the Continental Congress, but 
they were not made a legal tender, though mis had been done 

by some of the States. Under the Constitution, 

Notes ©«* no Treasury notes were made legal tender till 
L*sai Tender lg6j jfe ^ Q £ Ychmssry 25th of that year 

provided for the issue of notes to be "lawful 
money and a legal tender in payment of all debts, public and 

rnvzir ::.:::: ::::- :z mil in; 1:1 i .:.:::::: :u :nt :-:zi= :.r. i 
mie; : ::.± Vr.:e £ 5 iiies Great opposition was made to the 
legal tender feature of the hill, and it was acquiesced in only on 
the ground of extreme necessity. A redeeming feature of the 

11 ::f: ir.i: 

- ; If. ;..-._ mitres: : 1 ; Mi's: unfortu- 

ni:r>. iiiis ;:: m ::i --1.5 reim^i me r.t:-:: ytir. 

The constitutionality of the law has been sustained by the 

:±—± 1 iners of the 

Constitution intended to put the issuing of legal 

tender notes beyond the power of Congress. Mr. 



Madison says the Convention had •'cut off the 
zztzii.: :':: : _■'_'"' ■ -■.'•■-.; :~.L yirn: ulir.y :':: ir.ilir.r. the bills 
a ismdar, either for public or private debts." 2 "Our federal 

:■ .::i : : ei: : : : 7 ve: the 

A r. ; : •' ! <f. • ._ _ 

H .. ::: emission of bills of credit as legal tender m pay- 

ment of debts, alike by die individual States and 
:'z- V:::r: Suites. : 



a MEoKt, L p.. 23a. ^TWl BJu xt, V. p.. 4Sa. *&smaas8xrs FBexJbr the CewrtztuJiem., p. 5. 



I. VIII. 5- TREASURY NOTES. IO3 

The Treasury notes issued under the act of 1862, known as 
"legal tenders," and " greenbacks," which bear no interest and 
have no specified time of payment, soon began to The Legal 
decline in value, being worth in July, 1864, only Tender Notes 
thirty-five cents to the dollar in gold. In the De P reclate - 
autumn of 1865 the value had risen to seventy cents. "An 
act to strengthen the public credit" was passed in March, 1869, 
in which ' ' the United States solemnly pledges its faith to make 
provision at the earliest practicable period for the redemption of 
these notes in coin." Six years later, in January, Redeemable 
1875, Congress passed an act that the legal tender since January 
notes should be redeemed in coin on and after the 
1 st of January, 1879. Since that day these notes, which had 
been irredeemable for nearly seventeen years, have been paid 
in gold on demand. One thing more was neces- But Required 
sary, — that the notes, as they were redeemed, to be 

should be cancelled. But the Congress of 1878, e-issued. 
after restoring the silver dollar (in February), enacted (in May) 
that the legal tender notes, when redeemed, should not be de- 
stroyed but re-issued. 

The Secretary of the Treasury, in his Report for 1885, speaks of this 
act as " postponing indefinitely the fulfillment of the solemn pledge 
(made in 1869) not only of redemption, but also of payment of all the 
obligations of the United States not bearing interest." The amount of 
paper money thus unpaid is $346,681,016. 

There are those who seem to think that a legal tender note is 
really money, as much as a gold or silver coin. It passes cur- 
rent, it pays debts; why is it not money? The These Notes 
stamp of the government, they think, gives it ar e Promises 
value, and therefore it makes no difference of 
what material it is made. "Whether the coin shall be metal, 
leather, parchment, paper, or any other substance, is a question 
of expediency," it is said. The government, however, does 
not profess to have this power of making something out of 



104 THE CONSTITUTION. I. VIII. 5. 

nothing. Congress and the President know that these notes 
are simply evidences of debt due by the United States to the 
holders of them. Every such note is a promise to pay by the 
government. It is like a promissory note given by a private 
citizen, or a note issued by a bank. The difference is that a 
bank-note is a promise to pay on demand, and the note of a 
person is a promise to pay on demand or at a specified time ; 
while on the government note the time is indefinite. 

A gold eagle has upon it the stamp of the United States, 

which is a guaranty that it contains so many grains of pure 

Difference Be- gold. It bears its value upon its face, — ten dol- 

tween Gold lars _ Bllt: a le j tenc ier note does not purport to 

and Green- c r r 

backs. be ten dollars ; it is a mere certificate of indebted- 
ness for that amount on the part of the government to the 
holder of the note. "The United States will pay the bearer 
ten dollars." If this piece of paper were itself ten dollars, 
there would be no subsequent transaction requisite between the 
holder and the government. As between man and man it is 
, with Them given and taken as in full satisfaction of debt; 
Debts are ^ut he who receives it holds it as a valid debt 

Transferred, 

not Paid. against the United States. When the government 
pays gold to its creditor, the debt is paid. When it pays him 
legal tender notes, it gives him a certificate of indebtedness 
which he may transfer to another. If the Treasury notes in the 
hands of the people are veritable money, as truly so as gold, 
then the United States is not indebted to those who hold them 
any more than it is to those who have gold eagles in their pos- 
session ; and the Treasury Department should not report these 
Treasury notes as a part of the National debt. 

In authorizing Congress to "borrow money," as well as 
"coin money and regulate the value thereof," and in prohibit- 
ing the States from coining money and emitting 

„ bills of credit, the Constitution places in Congress 

Currency. ' * ° 

the control of the whole subject of money; not 
only of gold and silver coin, but of all substitutes for them. 



I. VIII. 5. TREASURY NOTES. 105 

This control, however, so far as it relates to the bank-note cur- 
rency of the country, Congress has not chosen to exercise, 
except partially, until within a few years. 1 A bank of the 
United States was chartered February 25th, 1791, as a fiscal 
agent of the government, with a capital of ten millions, and to 
continue twenty years. On the 10th of April, 181 6, another 
was chartered, with a capital of thirty-five millions, to continue 
for the same period. Congress refused to re-charter the first, 
and President Jackson vetoed the bill to renew the charter of 
the second. In 1841, two bills in succession were passed to 
establish a United States bank, but both were vetoed by Presi- 
dent Tyler. Congress also authorized the establishment of 
banks in the District of Columbia. 

With these exceptions, the charters of the banks of the 
country have been granted by the several State legislatures. So 
familiar had the people become with the currency 
furnished by these State banks, that when Congress ^states 
passed, February 25th, 1863, the act to establish 
National banks, many supposed that the General Government 
was usurping an authority which belonged to the States. On 
the contrary, we are forced to inquire where did the States 
obtain the power to charter banks and thus provide the paper 
circulation of the country? "Is not the right," says Mr. 
Webster, "of issuing paper intended for circulation in the 
place, and as the representative of metallic currency, derived 
merely from the power of coining and regulating the metallic 
currency? Could Congress, if it did not possess the power of 
coining money and regulating the value of foreign coins, create 
a bank with power to circulate bills ? It would be difficult to 
make it out. Where, then do the States, to whom all control 
over metallic currency is altogether prohibited, obtain this 
power?" (In U. S. Senate, May 25, 1832.) 



1 The Bank of North America at Philadelphia, chartered by the Continental 
Congress in December, 1781, was the first bank organized in the United States. 



106 THE CONSTITUTION. I. VIII. 5. 

The States established banks of issue because Congress 
tacitly left it to them in great measure. The authority was in 
the General Government; but, as Congress did not choose to 
exercise it, the State legislatures went forward in this work till 
such time as the General Government should see fit to provide 
a bank-note currency for the whole people. 

The act of June 3d, 1864, a substitute for that of February 
25th, 1863, provides for a Bureau of Currency in the Treasury 
Department, at the head of which is a Comp- 
Banks! troller. Banking associations may be formed with 
power to issue bills, receive deposits, loan money, 
and perform the ordinary functions of banks. By an act of 
March, 1865, amended in July, 1866, a tax of ten per cent was 
levied on the circulation of the notes of State banks after 
August 1, 1866. This excluded these notes from circulation, 
and from that time the bank currency of the country has con- 
sisted solely of the notes of National banks. 

The circulation was at first limited to $354,000,000, and was 

distributed among the States and Territorities according to 

wealth and population jointly ; but both these provisions have 

been repealed, thus making banking free. Any number of 

persons, not less than five, with a capital of not 

Banking. ^ ess tnan $5°> 000 > ma y form a banking association 
under the law. All bank-notes issued are secured 
by a deposit of United States bonds in the treasury. The cir- 
culation of a bank can not exceed ninety per cent of the 
amount of bonds deposited ; ranging from sixty per cent when 
the capital is three millions and over, to ninety per cent when 
not over half a million. 

The advantages of this national bank-note currency are (a) 

that the payment of the notes is guarantied by the United 

States, so that no bill-holder can suffer loss; lb) 

Advantages > \ J 

of National that each bank must receive in payment the notes 
Bank-notes. of all Qt ^ eT k an k s . ^ t h at t he notes are receiv- 
able for all dues to the United States except for duties on im- 



I. VIII. 5- WEIGHTS AND MEASURES. I07 

ports. The currency is thus made uniform over the whole 
country ; a bill on a Texas bank passing as readily in the city of 
New York as one on a New York bank. As a banking system, 
aside from the security of the circulation, it has special safe- 
guards, particularly in making every bank subject to frequent 
examination by a government examiner, and in requiring the 
publication of sworn statements of its actual condition. It is 
believed that no other banking system possesses so many ex- 
cellences with so few defects as this. 

Much effort has been made to secure an international 
coinage. As the pound sterling contains 113 grains of pure 
gold, and the American half-eagle 116.1, if the 

, .. . . International 

latter were reduced 3. 1 grains, or about thirteen coinage, 
and one third cents, the two coins would be equal 
in value. So if the gold in twenty-five francs (1 12.021 grains) 
were increased a trifle over four cents, it would equal the pound 
sterling. These slight changes would secure uniformity in the 
gold coins of England, France, and the United States. 

Weights and Measures. — There is propriety in connecting 
weights and measures with money. By money we express the 
prices, or relative values, of all commodities, and by weights 
and measures we ascertain the quantities of commodities. As 
we need uniformity in money, so we need it in all measures of 
quantity. Moreover, the value of all money (gold and silver) 
is measured by its weight. Both subjects, therefore, were com- 
mitted to Congress. 

The importance of uniformity was urged by President Wash- 
ington in his message to the first Congress ; and various reports 
on the subject have been presented at different times. A very 
elaborate one was prepared by John Quincy Adams when Sec- 
retary of State, in 1821, but the recommendations were never 
embodied in a statute. 

By an act of Congress, May 19th, 1828, the brass troy 
pound weight, procured by the minister of the United States at 



1 : : i vi mi _- ne aa - :<:um: Jilnr ne 

HTnii - . ffTffR 1. saris in mr _ - - . ' - : : . 

mj v . - • - : ■ . - -_:.. : - ramtfelmn 5: 

: - a..: 

.: ■ " 
:> v- ; -.in utiosur-is inu 

-: " . 
im mT-n :.- sisLuisiit^i "iirMiiiiicur me 7: 



TTfre Mstr: - n t^s feg^boaf &y act ctf CooigDes in. pi. " 

..::.:• i:n :: : ■ L::i;r rrrnr.c : 

rmi:- :_-t , mifanfe §m tfe 

TnigiM' , li- c 

ataten. l.ii: ,_ -::ir : ;!:-— :<:~j : ;-i'i "^mi«:j.~cii :i 

:: . . - - -.rem. 

.-..:: ■ - 

~. . . - .-.-. mi -.••."• - _. ft 

Here. B - .liame&r 

.vBK&EamB&ae i mere — 

merer, anf ;ie milizm&tr (^— — . -.- ■ 

E5e inir jj ;ie bbbsbbue 3be aetata - . Tire 

".... - ::.- .-: ~\.- ;itr:r ..' : „:- .:- ■;." •:':„.•": Hi- --r „:. . .is u :zar 
n - -. 
'' hlt„ •.:: . :.-.-..:." he .:.'" : Be mfi; wmnfi - .... me nftta 

..."-/- ' u iuuid 

nmrasr. - QBe H .eriuniiii.. a rnggmam 

-—-- -, xaa i . .. ■ 

xaiL milu. 

a - - v- - . u - - - _- - 

: - -.: line -_ ~. - . ■:...::mum : " : 

. . iin i " ~~_ S3 " - --. ' 

am. railii neau. 

. .. - -an, csntigrwn. xaii mill- 

: .:. - a -/ -. nier- 

1U. Ill ~ - - - - ' : 



I. VIII. 6. COUNTERFEITING. I09 

weights and measures by all civilized nations, and of the same 
gold and silver coins, are many and obvious ; but it will be ex- 
ceedingly difficult to change, in these respects, the habits of 
nations fixed by long usage. 

By act of July 27th, 1866, the Postmaster-General was re- 
quired to furnish to post-offices exchanging mails with foreign 
countries postal balances, denominated in grams of the metric 
system; and, until otherwise provided by law, one half ounce 
avoirdupois was to be taken as 15 grams (15 grams being equal 
to .529 oz). 

Clause 6. — To provide for the punishment of counterfeiting the 
securities and coin of the United States. 

The right to punish counterfeiting would follow from the 
right to coin money. By " securities" are meant all certificates 
of indebtedness, such as bonds, Treasury notes, 
etc. The word stock, or stocks, is often used to 
denote a debt due by a government on which it pays interest. 
Thus we say that a person holds ten thousand dollars of United 
States securities, or twenty thousand dollars of Ohio stock. 

The General Government punishes the making and also the 
passing of counterfeit money or securities. It is held that the 
States may also punish the passing of counterfeits of United 
States coin or securities. 

Congress has passed laws punishing the making, forging, or 
counterfeiting, and the passing, uttering, or publishing, of, the 
coin of the country, the notes of the United States bank, the 
Treasury notes, the fractional currency, the notes of the 
National banks, the excise stamps used for internal revenue, 
letters patent, postage stamps, stamped envelopes, and custom- 
house certificates. 

Making or passing counterfeit coin is punished by fine not 
exceeding $5,000, and imprisonment not exceeding ten years. 
In the case of notes, the imprisonment may be fifteen years. 



: : ; the constitlxil i. yih. 7. 

In 1884 an act was passed punishing the coonterfeiting within 
the United States of notes, bonds, etc., of foreign governments. 
The penalty is imprisonment not to exceed five years, and a 
zzt n:: ::■:::::::: 5 5 :::. 

Clause 7. — ~- :::2~:'.:;\ ?:::-:f.:;: z:z r :::--: zz:. 

A Post-office Department was established before the Declara- 
tion of Independence. In July. 1775, the Continental Con- 

Postai Mat- g 11655 niade provision for such a department, and 
ters under the Dr. Benjamin Franklin was placed at die head of 

< * BtiBental it, with the title of "Postmaster-General of the 
I r.::ei ri'.z-.es. ; r.e Aruz.es :: Z:z:~±i±7i~i:z 
_ t ?:: rrtf; :he ?:"e izi e.-.i.usive rlz~: u: ; : t : ::" es- 
tablishing and regulating post-offices from one State to another, 
:'zr:zz'r.: :.: ;.'.'. :/.- V:::::: S.JL.es. ir.i txuzzzz s-'.'z z<:<zizt :z 
:.". - ; : ; -: ; z :•-.__■ \. :. _.\ ::. - - . - 

It:. : t t: t —: :' Lie ?: .:. :fi:e 

"By the authority of two short woris^ 'estat. post-ofiaa 

erz—en: zi~t .zr.'i.tl zz. e-:i :'..-':. r. :=- : ;r.:'. : -- z — :re z\-:. : :r:: :.- 
. z : : = ::::.:;;e zz L .iltzzzz - :t :-: =z : 

r--fz:ei —:-.!;- : :"t r.:- -ii:. :':: lie ii~ : ~ -ini.:ii : :' lie — i:"_e z ■ 
-.- _ [-:•: :;ie:e .:- - 7 - ~-z~z ;: : -:• ~ . 7 7 V: - 

?-ZL-.is :.:.: lie exc-en i.i ^-e :':: lii: 7:: ■■-.= 5;: :_: I:. :::: liere 
■-; :_ 7 : -ritf ... , t ztz. 7- -ere 5f: sj [-- ~-t 



lie ?:=:- 

:.n Liree _ J 



: :m: ens-i: 

= :s:-Crr::e 



re~:vef :y ....v. Zz. li iLier :: ; r: z~.t 
::.-:.: ~i::i ii ::: :":_. . v.; ie :; . :....:.- :: Lie 

Z:-i.Z-z: :i: : :ii:.v.: 1 : l :v Lie 5eLi:e. 7.5 :. : . ~li::l 
lull :r:5 75 lull : : li;u5ll:l ire n:i fi.ir.ef lie ;Liers 



I. VIII. 7. POST-OFFICES AND POST-ROADS. Ill 

receive the rents from boxes, and a percentage on the sale of 
stamps and other office receipts. Prior to 1864, all the post- 
masters received their compensation in this way. 
The salary is not expected to exceed one half of Masters, 
the gross revenue of the office. The amount paid 
for the transportation of the mail is nearly three times that 
paid to the postmasters. In a few instances the income of 
the Post-office Department has equalled or exceeded the ex- 
penditures. As the population of the country becomes more 
dense, the relative cost of transporting the mails may be ex- 
pected to diminish. 

Mailable matter is divided into four classes; namely, first, 
letters; second, regular publications; third, books, circulars, 
transient newspapers, etc.; fourth, merchandise. (1) Letters — 
postage two cents for each ounce or fraction of an ounce. On 
drop letters, two cents at free delivery offices ; one cent at other 
offices. Postal cards, one cent. (2) Regular publications — one 
cent a pound on those issued as often as four times a year. All 
periodicals sent free to subscribers within the county. (3) 
Books, pamphlets, etc. — one cent for two ounces; limit of 
weight, four pounds, except for a single book. (4) Merchan- 
dise — one cent each ounce; limit, four pounds. 

Letter postage is now two cents for any distance within the 
United States. Formerly the rates were much higher, and 
were different for different distances. From 1792 

Former Rates 

to 1845 letter postage ranged from six cents to f or Letters. 
twenty-five, according to distance. In 1845 it was 
reduced to five cents for 300 miles and under, and ten cents for 
greater distances. In 185 1 it was made three cents for 3,000 
miles, if prepaid, and five cents if not prepaid. For greater 
distances these rates were doubled. In 1863 a uniform rate 
was established for all distances, — three cents, — which in 1883 
was reduced to two cents. 

Until 1845, letters were single or double, according as there 
was one piece of paper or two ; after that time a letter or parcel 



112 THE CONSTITUTION. I. VIII. J. 

not exceeding half an ounce was deemed a single letter. Since 

July i, 1885, a letter weighing one ounce is carried for two 

„. , cents. Prior to 18:51 there was no reduction for 

Single and «* 

Doable Let- prepayment. In that year a difierence of two 
ters. cents was made, as stated above. In 1855 pre- 

pavment was required, and this continues to be the rule. 

Postage stamps were introduced in 1847, Dut did not become 

general till 1855, when letters were required to be prepaid. 

Stamped envelopes were furnished first in 1S5:. 

In 1872 postal cards were authorized, which are 

carried for one cent each, including the cost of the card. 

In 1855, for the greater security of valuable letters, the Post- 
master-General was authorized to establish a plan for registra- 
tion. A fee of ten cents besides the regular 
Letters. postage is charged for registering a letter. The 
government takes special charge of such letters, 
but does not hold itself responsible if they are lost. 

In 1864 the postal money-order system was established. This 
enables one who wishes to send money to do it by depositing 
the amount with a postmaster, and receiving an 
Orders. order on the postmaster of the place where his 
correspondent lives. A small fee is charged, 
according to the amount of the order. Money orders are ex- 
changed between the United States and many foreign countries. 
In 1863 the Postmaster-General was authorized to provide 
for the free delivery of letters by carriers, in cases which, in his 
judgment, might justify it. In 1865 the svstem of 

Free Delivery. 

free delivery was required to be established in 
even* place containing a population of fifty thousand, and at 
such other places as might be thought best. In 1873 letter 
carriers were authorized in all places containing not less than 
twenty thousand inhabitants. Now. 1887, towns of ten thou- 
sand may have free delivery. Provision is made for immediate 
in towns of four thousand inhabitants, of letters bear- 
ing a special extra stamp of ten cents. 



I. VIII. 7. MAIL ROUTES. II3 

Letters unclaimed for a certain time are advertised; if not 
called for, they are sent to the Dead-letter Office. Here they 
are opened and returned to the writers. The name and address 
of the writer upon the envelope secures its return to him if not 
called for. 

The franking privilege, or privilege of sending and receiving mail 
matter free, was formerly enjoyed by the President, Vice-president, the 
Cabinet officers, the Members of the Senate and House of 
Representatives, the Delegates from the Territories, and privilege 
some others. In general, it was limited to the term of 
office, but Senators and Representatives could retain it till the December 
following the expiration of their term. To each of the first four Presi- 
dents it was voted for the remainder of his life, and subsequently it was 
conferred for life on all Ex-presidents. It has also been voted to the 
widows of the Presidents during their lives. In February, 1873, tne 
franking privilege was abolished, the act to take effect the first of July 
following. Modifications have since been made. The act of March, 
1877, provides that letters and packages on government business may be 
sent free from the departments, and that Senators and Representatives 
may receive and send all documents printed by Congress. 

Mail Routes. — Obstruction of the mails is forbidden under 
heavy penalties, as is the carrying of mail matter outside of the 
mails by public carriers, except in stamped envelopes. 

In 1825 it was enacted "That no other than a free white 
person shall be employed in conveying the mail." This dis- 
qualification continued for forty years. 

The power to establish post-roads has been interpreted to include the 
power of making internal improvements. In 1803 Congress authorized 
three per cent of the net proceeds of the sale of public 

1 1 • 1 r. r ^1 ■ 1 -i 1 f> r 1 Post-Roads. 

lands in the State of Ohio to be paid to that State for the 
construction of roads. In 1806 an act was passed for the construction of 
the Cumberland Road — more commonly called 'the National Road — from 
the River Potomac to the Ohio. Both these acts were approved by Mr. 
Jefferson, as President, though in one of his messages he expresses the 
opinion that Congress, under the Constitution, does not possess the 
power of making roads. While doubting the existence of the power, 
he appeared to favor an amendment to the Constitution conferring it 
upon Congress. 
A. C .— 10. 



114 THE CONSTITUTION. I. VIII. 8. 

As the object of granting to Congress the power to establish 

post-offices and post-roads was to give them the control of the 

transmission of correspondence, it is claimed that 

Government r 

Control of the electric telegraph should be managed by the 
Telegraphs, government. The control over this agency, it is 
said, can be abdicated by the government with no more pro- 
priety than that over correspondence by railroad or steamboat. 
The subject has been much discussed in this country, and Con- 
gressional committees have reported favorably upon it. Most 
of the governments of Europe manage the telegraph by their 
own officials, and their experience is claimed to be satisfactory. 

Clause 8. — To promote the progress of science and useful arts, 
by securing, for limited times, to authors and inventors the exclusive 
right to their respective writings and discoveries. 

This clause authorizes Congress to issue copyrights to authors, 
and patents to inventors. There is no limitation to science in 
the strict sense of the word, nor to the useful as distinguished 
from the fine arts. All books, maps, charts, musical composi- 
tions, engravings, photographs (or negatives), chromos, statues, 
etc., whatever the subject may be, are included, and so are all 
inventions. There are many copyrights and patents issued 
which promote the progress neither of science nor of the useful 
arts. But there can be no question as to the propriety of giv- 
ing to authors and inventors the exclusive right for a limited 
time to their works. 

Copyrights. — The exclusive right of an author to his writ- 
ings is secured to him by giving him a copyright — that is, the 
exclusive right to print, publish, and sell them. 
What? ' His unpublished writings are clearly his own prop- 
erty. He needs no copyright for them. 
Prior to the adoption of the Constitution, the States granted 
copyrights, and the first act of Congress on the subject recog- 



I. VIII. 8. COPYRIGHTS. 115 

nized the rights thus granted. The first law was enacted in 
1790, and gave to the authors the exclusive right to their works 
for fourteen years, with liberty of renewal for a 

• , -r 1 The Term of a 

like period. In 1831 the term was made twenty- copyright, 
eight years, with the right to renew for fourteen 
years longer. If the author has died, the renewal may be 
made by the widow or children. 

A copyright is obtained as follows : A printed copy of the 
title of the book, or a description of the painting or other 
article, must be sent to the Librarian of Congress, 
and within ten days from the publication two obtained, 
copies of the book, or a photograph of the paint- 
ing, must be also sent. In every copy of the book there must 
be entered on the title page, or the page following, the words 
" Copyright, 18—, by A. B." 

The copyright was issued by the Clerk of the District Court of the 
United States until 1870. In books printed early in the century, the 
copyright entry on the page following the title page was full and formal, 
sometimes covering the entire page. The copies of books and other 
articles for which copyrights were obtained were kept in the Department 
of State till 1859, when they were transferred to the Department of the 
Interior. In 1870 they were placed under the control of the Librarian 
of Congress. 

If there are different editions of the work issued at the same time, the 
two copies deposited must be of the best edition ; a copy of every subse- 
quent edition in which any substantial changes are made must also be 
sent. The penalty for failure to send these copies is twenty-five dollars. 

A copyright is assignable in law, but the assignment must be recorded 
in the office of the Librarian of Congress within sixty days. The mode 
of securing a renewal of a copyright is the same as for obtaining the 
original ; it must be done within six months before the expiration of the 
first term. 

The subject of international copyright has been discussed 
with much earnestness by authors and publishers, and organiza- 
tions have been formed for the purpose of securing the neces- 



Il6 THE CONSTITUTION. I. VIII. 8. 

sary legislation. Thus far, however, there has been no action 
of Congress on the subject. 

Patents. — Provision was made by Congress in 1790 for giv- 
ing to inventors the exclusive right to their discoveries. From 
that time to the present patents have been issued, the number 
increasing each year. 

At first, applications for patents were made to the Secretary of State, 
and the decision was made by a Board, consisting of the Secretary of 
State, the Secretary of War, and the Attorney-General. In 1793 the 
Secretary of State alone was authorized to issue patents. 

In 1836 an office, or bureau, was created in the Department 
of State, under the name of the Patent Office, the chief officer 
being styled the Commissioner of Patents. From 
office. tnat time, patents have been issued by the Com- 
missioner. The Patent Office was transferred to 
the Department of the Interior in 1849, w hen this latter depart- 
ment was created. Originally patents were signed by the 
President of the United States; then by the Secretary of State 
and the Commissioner of Patents ; now by the Secretary of the 
Interior and the Commissioner. 

The term for which a patent was valid was fourteen years 

originally, but in 1870 it was made seventeen 

a Patent. yeais. It is competent for Congress to extend the 

time of a patent, whether application be made 

before or after the expiration of the original term. 

In 1S36 the power to extend for seven years if the patentee had failed 
to receive a suitable return for his time, ingenuity, and expense, was con- 
ferred on a Board consisting of the Secretary of State, the Commissioner 
of Patents, and the Solicitor of the Treasury. But such extension must 
be granted before the expiration of the time for which the paten: 
originally issued. Since 1848 the power :; extend in such cases has been 
exercised by the Commissioner. 

Prior to the formation of the Constitution the issuing of 
patents, as well as the granting of copyrights, was lodged in the 



I. VIII. 8. PATENTS. 117 

several States. But while copyrights were granted, at least in 
some of the States, by general legislation, no patents were 
issued except by special legislative acts. 1 

When application is made for a patent, a model of the article 
is required to be deposited in the Patent Office. There has 
gradually been gathered in this way a vast collec- 
tion of models and specimens, making the Patent 
Office at Washington a place of resort to most who visit the 
national Capital. 

In 1836 the building in which these were contained was burned, and 
many of the models were destroyed ; but Congress made an appropriation 
of $100,000 to procure duplicates of those which were the most valuable. 
The present buildings extend over two entire blocks of the city of Wash- 
ington. 

The applicant for a patent must make oath that he believes 
himself to be the original inventor of that for which he seeks a 
patent ; he must file a full description of the same, 

n . ,, .... . Application 

and, in all cases admitting it, must present draw- for a p atent , 
ings and a model. A prior patent in a foreign 
country does not debar him from receiving a patent here, pro- 
vided the invention shall not have been introduced into public 
use in the United States for more than two years prior to the 
application. 

The fees in the Patent Office are, on filing the application for 
a patent, fifteen dollars ; on issuing the patent, twenty dollars ; 
on application for extension of a patent, fifty 
dollars; on granting an extension, fifty dollars. 
Patents may be granted for designs as well as for machines. 
Formerly patents were issued for trade-marks, but in 1879 the 
Supreme Court decided that Congress could not authorize them. 
Trade-marks, however, are protected by State laws in a large 
number of States. 



1 Curtis, II. page 339. 




t:-:i rDUSTiruTiuiL «.^m. 9. 

~_ - ■ - ■ - - 9 - T 1 -.:: ~ - more than the e: 

: . . - - - : 1 - ' 

prtg-i _, t eel : - : : 

-:_:.-■-- - - 

.:::..";■-: e i am 
_-;.. ir 1SS5 the numbe- ma — - "- - ._--■- 

i 

13 - ! a a msB e an amm ; amour 

- - - 1 ; ""-- 

..:".;; rr I n WXDjg 
- -- 

: ort. 

v.:; ..: . ■ 

■- 7 ■ - ■ " 'Oiume ; 

-.7" . - .,_--.:;-: 

i nmiuiij i r r . and 

a: ..:.: . .. --■ ■■ : - - - .... " rnmissio: 

1 ntiraffifl i 

caxmc ; 1 - mmj dh ~ . eal and 

: 



Pater: rnment musr be recoifM 

r 7.-ent^fc:t _-_L aaA those makm. 

_:.:• In nril one wfflfl 

- : r of th: _ .: e: each 

t nbhc may havr : 

Clause 9. — 7 
Coi 

7 1 e Ik ■ st -.: : 

III . : e ■ - am 

fir.-: 
:: ■ . ■ r :: t . ■ . ■ si zm 

..nd the:- 
indi( : Unitt i 7l 



I. VIII. IO. PIRACY. I J 9 

was established, which hears and determines claims on the gov- 
ernment. All these will be considered under Article III. 

Clause io. — To define and punish piracies and felo?ties com- 
mitted on the high seas, and offenses against the law of nations. 

Piracy is robbery at sea. The common law recognizes and 
punishes it as an offense against the universal law of nations; a 
pirate being deemed an enemy of the human race. 
The Continental Congress, in 1781, declared death 
to be the punishment for piracy. In 1790 an act was passed 
by Congress providing for the same punishment. In 1820 
Congress passed an act which declared it to be piracy to land 
on a foreign shore and seize negroes or mulattoes, or decoy 
them on board vessels, with intent to make them slaves. 

Congress may define as well as punish piracy. Under this 
clause Congress has made the slave trade piracy — it has ex- 
tended the definition of piracy to include what 

, . _, - Congress may 

some nations may not regard as piracy. Before define Piracy. 

Congress could punish offenses against the law of 

nations it must define such acts or declare them to be such 

offenses. 1 

At common law that was considered felony which occasioned the for- 
feiture of lands and goods, and for which the punishment of death might 
also be inflicted. Capital punishment does not necessarily enter into the 
definition of felony, yet the idea of felony is so generally connected with 
that of capital punishment that it is difficult to separate them. 2 

By high seas is meant, in general terms, the ocean, whose 
waters are common to all nations. 

A nation is responsible for its citizens, and must punish them 
if they interfere with the rights of other nations; otherwise, 
there will be retaliation, and friendly relations will be disturbed. 



1 Wheaton's International Law, \ 124. Curtis, II. page 331. 

2 Tiffany's Treatise on Government, page 241. 



Hh ■ ■ ■. t :. ! : . 

. -:.: : . i . j ..:. - . tiaras. 

Clans t : : — 7 

- 

- or 
I - ; :.?r _-„ 

commit:: mi Tba 

-. :. 1 - : - 

"ing 

In Great 3 

- b 
Mr. Hamii: : ased & I d 

een 

I 

: 
don 

fa 

.. E .. - . . : z ■ - 

" - pi I 

be T~n: I: 

. 

- 

~ nm msi iebbS 

r~ r : 



~ : - 
- 



I. VIII. II. LETTERS OF MARQUE. 121 

In the case of the rebellion there was no act of Congress 
declaring war, as war is an armed conflict between nations. 
The act of July 22, 1861, is entitled " An act to authorize the 
employment of volunteers to aid in enforcing the laws and 
protecting public property." The preamble recites 
that certain of the forts, arsenals, and other prop- Rebellion, 
erty of the United States, had been seized, and 
other violations of law committed and threatened, and the act 
authorizes the President to accept the services of 500,000 
volunteers. The conflict assumed the magnitude and propor- 
tions of war, and those in insurrection were recognized by 
various nations as belligerents, though not as an independent 
state or nation. 

The word marque signifies landmark or boundary, and letters 
of marque denote the commission issued to a private person, 
authorizing him to pass the frontier and take the persons or 
property of the subjects of another nation from which injury 
has been received. The word reprisal, meaning a retaking, 
indicates the purpose for which the commission is issued. A 
vessel bearing such letters is called a privateer. The law of 
nations recognizes the right of one nation to take this mode of 
obtaining redress from another. Oftentimes letters of marque 
and reprisal are issued before a declaration of war. They may 
prevent a war or they may occasion it. Letters of marque 
were authorized by Congress in the war of the rebellion, but 
none were issued by the President. They were used in the 
war of the Revolution. 

The rules concerning captures are not limited to those made beyond 
the nation's territory, but apply also to the property of enemies found 
within the territory. The Supreme Court has decided that these rules are 
an express grant to Congress of the power of confiscating enemy's prop- 
erty found within the territory at the declaration of war. 1 



1 8 C ranch, page 110. 
A. C— 11. 



122 THE CONSTITUTION. I. VIII. 12. 

Clause 12. — To raise and support armies, but no appropriation 
of money to that use shall be for a longer term than two years. 

Ynder the Articles of Confederation, Congress could declare 
war, but they could not raise armies. They had power only 
Powers Under " to a g ree upon me uumber of land forces, and to 
Articles of make requisitions from each State for its quota, in 
1 proportion to the number of white inhabitants of 
such State." 1 "The experience of the whole country, during 
the Revolutionary War, established, to the satisfaction of every 
statesman, the utter inadequacy and impropriety of this system 
of requisition. It was equally at war with economy, efficiency, 
and safety. "* 

This clause gives the power to raise and support a standing 
army, or "the military peace establishment of the United 
States, " and the large armies necessary in times of war. Three 
times in our national history, since the war of the American 
Revolution, has it been necessary to call out large bodies of 
men: in the war with Great Britain in 1812, in that with 
Mexico in 1846, and during the late rebellion. The number 
of men called into the service of the government in the war of 
the rebellion was vastly greater than in either of those preced- 
ing. There were over a million of men in the Army of the 
red States at the close of the war. 

By act of March, 1S63, provision was made for enrolling and calling 
oat the national forces. Congress enacted that all citizens, and those who 
Act Under had declared their purpose to become such, between the 
Which Men ages of twenty and forty-fire, should, with some excep- 
were Drafted, fions, constitute the national forces, and should be liable to 
perform military duty when called out by the President. It was under 
this act that men were drafted. The quotas to be drawn were assigned to 
the different districts, taking into consideration the number of volunteers 
and militia furnished by them respectively. 



m Articles of Confederation, Art. IX. : 5 . : 11";- 



I. VIII. 13. THE REGULAR ARMY. 1 23 

There was a small standing army at the time the Constitution 
was formed. The organization has been continued to this time. 
By act of Congress of July, 1866, the regular army 

r r • r -n r Tne Regular 

was to consist of five regiments of artillery, ten of Army, 
cavalry, and forty-five of infantry. Of general 
officers there were one General, one Lieutenant-General, five 
Major- Generals, and ten Brigadier-Generals. The army has 
been reduced since 1866 to 25,000. It was provided in 1870 
that no new appointments should be made of Major-Generals 
or of Brigadier-Generals till the number should be below three 
and six respectively; and that then the number of Major- 
Generals should not exceed three, or that of Brigadier-Generals 
exceed six. It was also provided in the same year that the 
offices of General and Lieutenant-General shouKT^cease with 
the officers then in office. 1 

The office of Lieutenant-General was created in 1798, and General 
Washington received the appointment. This was abolished and the office 
of General was created in 1799, and this was abolished in offices of Gen- 
1802. In 1855 the office of Lieutenant-General was re- eral and 
vived, that it might be conferred by brevet on General Lieut. -Gen. 
Winfield Scott. In 1864 General Ulysses S. Grant was appointed Lieu- 
tenant-General, and became the highest military officer under the Presi- 
dent. The office of General was revived in 1866, and General Grant was 
appointed to the office. Major-General William T. Sherman was then 
appointed Lieutenant-General. On the election of General Grant to the 
Presidency, Lieutenant-General Sherman was made General and Major- 
General Philip H. Sheridan Lieutenant-General. On the retirement of 
General Sherman, Nov. I, 1883, Lieutenant-General Sheridan took the 
chief command. 

The appropriation is limited to two. years, which is the Con- 
gressional term. This gives the virtual control of the army to 
the people. 

Clause 13. — The provide and mai7itain a navy. 



1 Since 1882 all officers are retired at the age of sixty-four. 



124 tee ~oy=Trrmc i. vm. 13. 

7 neve ~on in the Convention to giving to Con- 

b Dme of the State jo nventions much 
hi'Sth.ry wis manifested The Department ::" the 
~ VrT v = --"-■" - v ~- v " ~" -= ~- : ~ established rill t".-i- ie general 
chari-e ::" the naval fences and the bmUhls pertain- 
:o naval affairs having been e ::::/::. rr-i :: 

the It" ntaasat of flack had been t ; e lisiied in - 

It wa rill the brfllia" : drift 

with saloaesj disapf 

to make our ni a nations was m: 

he whole nation. an Ease -ea-coast on both 

oceans, and with mmerce with all nations, the 

United \ farce :":: the r::tt:t:::. 

oar maritime i: 

The It irtmert eer from its T=tablishment in 

nder the charge of a 

The officers Bows, -with their rank corresponding 

to that of officer^ 

Army. 

.-. imiraL "trr'i. 

"".re- Admiral. 1 t -tenant-GeneraL 

'. -.' . . .':_ :r- Trent"! 

■7 : mm :;"".: t . Brigadier- TreneraL 

: ColoneL 

Commander. It; tr.ir .- 7 : ! : r :t! 
L -u tenant-Commander. 
1 .tutenant. 

Master. 7 It 

I rn Second Lieutenant, 

ides, in both army and nary ilmii I ider. ese were re- 

solved on by the Continental Congrt:- : ~7°- 

7" :. ! : ' . : ~ : t : e : - 

7 ".plain commanding two or mum shin s ■ 
*m*4*m f and . i -■ 



I. VIII. 14. LAND AND NAVAL FORCES. 1 25 

tinued. 1 In 1862 the offices of Rear-Admiral and Commodore were 
created, in 1864 that of Vice-Admiral, and in 1866 that of Admiral. By 
act of January 24th, 1873, Congress provided that when the offices of 
Admiral and Vice-Admiral become vacant the grades shall cease to exist. 
There are twelve Rear-Admirals and twenty-five Commodores. 

Clause 14. — To make rides for the government and regulation 
of the land and naval forces. 

The power to declare and carry on war involves that of pro- 
viding armies and navies, and that of governing the forces thus 
raised. Rules for the government of these forces R U ies for 
have been made by Congress in accordance with Army and 
this clause. In 1806, 2 an act was passed establish- avy * 

ing the Rules and Articles of War for the government of the 
Army. Every officer must subscribe these articles, in number 
a hundred and twenty-eight ; they are read to every recruit at 
the time of enlistment, and they are read and published every 
six months to every garrison, regiment, troop, or company. 

The Rules for the government of the Navy now in force 
were enacted in 1862. 3 For minor offenses the commanding 
officer may inflict such punishments as reprimand, 

. J l x Punishment. 

suspension from duty, arrest or confinement, none 
of which shall continue longer than ten days, except a further 
period be necessary to bring the offender to a Court Martial. 
For greater offenses, both in the army and navy, a trial is held 
before a Court Martial, and such punishments may be inflicted 
as the Court may pronounce, even to the taking of life. For 
capital punishment and in some other cases the approval of the 
President is necessary. Until 1850 flogging was one of the 
punishments inflicted in the navy, but in that year it was abol- 
ished in the navy and on board vessels of commerce. Flog- 
ging in the army was prohibited in 181 2, but in 1833 an excep- 
tion was made in the case of desertion. In 1861,* however, 
it was abolished. 



1 Gillet's Federal Government, page 335. 

2 April 10th. 3 July 17th. * August 5th. 



: : ■ thz : : v=t:~"t::n. i. Tin. 15. 

Clause If. — T: r ~:i : jV /." *■ ::.".;;;:;; :':■; :;.';;;- ;/ ■::■:..■:::.:.{ 
:':■: ..;:_. :/ :':: Z'::::. :..::~^:: /':;:. "-;.:.. •;;. .:;.j "Y_r\7 ;•;:.:;-';;. 

Clause 16. — 7# provide for organising, arming, and disaptin- 
;~- :':■: —.:!::: z. :~.i /. ■- ::-.:—.:-.: ::..:': r .: r /-' ;;/-: .;; -:.z\ ': : ■:-:- 
ployed in the service of the United States, reserving to ike States 
respectively the appointment of the officers, and the authority of 
training the militia according to the discipline prescribed fry Congress. 

The militia are distinguished from the regular army. The y 

ire :he v.zztz. 5 : - iers ::' :r.e ::un:rv. iiile :: :e ::.iti : v.: in 
cases of emergency. These clauses virtually give 
Congress the whole power in regard to the militia. 

In 1792 * an act was passed "to provide for the national 

Crirnsr ":y ts'ii'ls'.v.zr i un:: ": r~ ~ : l:r.i :hr : 'izz.: _: ~i~e Urziei 
S:i:e5. It provided for the enrolling of "every free able- 
bodied white male citizen of the respective States " between the 

izts ::" r; e h:tr- mi ::rr.---ve. 7.1 e 2:: ::' Mirir. : i. :::'-. 
;::-;iri :":: ::.t riiriii-r. : :" -tiTicf :y e rri-: : r. :- :.:: :he ::i 
"white" from the act of 1792. 

A law providing for calling forth the militia in accordance with Clause 
15 was passed in 1792. 2 An amended act was passed in 1795, 3 which is 

;::„;- :" :;t. 7;;i ".- — ^_:!i: r.zz-i .:.t rrrsiit-: :: :all :_: -.le ~ :l::ia. 
::: :he 7;;7_: : r- ^e-iir.ti. ii :e n::r^: - :: -trtti.;- ~it ~:li-a. 
when in the service of the United States, were to be sabject to the same 
3.~::".e.f :: ~~-~: 1- it :r^_lir ::.::: i~ i ::: .: :;:__t : :" -: :t ;:.: -:: 
exceed three months in any one year. In 1862 * this time was extended 
to nine months ; and it was provided, if the milit ia had not been enrolled 
■- 1:7 ~:::t ::_:; :le r reditu: ~:~1: ~-l-:t ill -t:ti=.ir7 nlti in : :::-• 
lations for doing it. 

The militia have been called out three times in the history of 
the country- The first was at the insurrection in 

miiHia Called 

C;:;-;-^. v.: ± ; :er:: :: izr.es ::7-t':rv:r.:. k:::-~ 1.5 iie 
Vhisky RebeIlion. ,, A portion of the inhab- 

::.ir-:.E ':.:. . i i—zsei :>_e exe:u~:z :: :Jie ".1— 5 :r::";5:r-i: iu~e= 

'- M27 i : >_ : Miy Li. » February 28*. \ .'.-/ .-±. 



I. VIII. l6. THE MILITIA. I 27 

on domestic spirits, and this opposition was at length carried so 
far as to render necessary the interposition of force. On the 
7th of August, 1794, the President issued a proclamation com- 
manding the insurgents to disperse, and at the same time made 
requisitions on the governors of New Jersey, Pennsylvania, 
Maryland, and Virginia, for their quotas of twelve thousand 
men. The number was afterwards increased to fifteen thou- 
sand. On the 25th of September another proclamation was 
issued, declaring the necessity of putting the force in motion. 
By this energetic action of the President the insurrection was 
quelled without bloodshed. 1 In his next message to Congress 
the President recommended a revision of the militia law, which 
was made in 1795. 

The militia were again called out in 181 2, in the war with 
Great Britain. In this case it was to "repel invasions." 

Though the President was authorized, by act of Congress 
May 13th, 1846, to employ the militia, as well as the naval and 
military forces, and to accept the services of volunteers in the 
prosecution of the war with Mexico, the militia were not called 
out. The troops furnished by the several States were all volun- 
teers. 

The third instance in which the militia were called out was in 
the war of the rebellion in 1861. The first call was by procla- 
mation of President Lincoln on the icjth day of 

... In 1861. 

April, 1 86 1, for "the militia of the several States 
of the Union to the aggregate number of 75,000, in order to 
suppress said combinations and to cause the laws to be duly 
executed." The President, by order dated August 4th, 1862, 
called for a draft of 300,000 militia to serve for nine months. 
And again June 15th, 1863, he called for 100,000 militia from 
the States of Maryland, Pennsylvania, Ohio, and West Virginia, 
to serve six months. Thus, in the late civil war there were 
three calls for the militia, as such, to the number of 475,000 



1 Marshall's Life of Washingtoti, Vol. V, Chap. viii. Pitkin, Vol. II. Chap, xxiii. 



12 I 



I. Tin. : - 



"rlL Tii5 :■-. 1 it:.: .. : : .;. ; . : = _■: 

ii- :~-itr5 :.:: :..v_ ::: i-: ::"::-; ir. i _z.it: ±_ i_: :: 

: .e nr:iil :"::;t- 7 ":. - 

:tzt : :z: : --_:_:: :;. _ . Hi:. : .11:. :- - 

Clause 17. — To exercise exclusive legislation in all cases what- 
soever, over suck district (mot exceeding ten miles square) as may, by 
cession of particular States, and the acceptance of Congress, be- 
come the seat ef the gnxrnment of the United States, and to exercise 
like authority over all places purchased by the consent of the legisla- 
ture of the State in which the same shall be, for the erection of 
forts, magazines, arsenals, dockyards, and other needful buildings. 

The iwtrirt for die government of which provision is here 
made, was ceded to the United States by Maryland and Vir- 
ginia, and accepted by Congress July 16th, 1790. 

: _-;^ .':: i:r._ : ii. :__t :t=5::~ : :' :..:: _ir. . ~~ ± " ti_: 

of the Potomac in December, 17SS, and Virginia 

the part west of the Potomac in December, 1789. The act of 

Congress accepting the cession provides •-that a district of 

:-::.:■ :.:: - :_:..::z_- ::;. :::.-- - _:_ :: ':_ 7:i:_i ;- \:.t 

: . - _ : r . 

Eniii :; _ . ::r. ; 

:t: :":: 7 _: :: :L-__ Vz::ti 

:___:__. T:.t zzti st '.: :z.:z\ ~ ie :: :•_ :±r zzt 

_ : : . - : 1 : :" : .\ r r : i •. . _ _ . : : : 
him.* 

_ ." _ i_. :_;.._. 7 it." _.-_■_. 11.2^ :r.:r :: :.-t ~r_~ Minnj :; 

tti ■■!■■■ iif December of that year — 1790 — all the gpvern- 

; ---- ::-:.: : rr. . : . . . .- _ :: rr.il_ it".: 

from New York, where Congress was then in 
: -..-.:_._ 1 zztzt iiLZL. ::.- ::i: I ::' I:- 



I. VIII. 17. THE DISTRICT OF COLUMBIA. 1 29 

cember, 1800, when they were to be removed to the permanent 
seat of government. The Continental Congress held their 
sessions in New York from January, 1785, till the Constitution 
was adopted, and the first Congress under the Constitution held 
the first two of its three sessions there. Thus, the seat of gov- 
ernment was at New York from March 4th, 1789, till the close 
of the second session of the first Congress, then at Philadelphia 
for ten years, and has been at Washington since December, 
1800. 

The original District of Columbia was ten miles square, its 
boundary lines running N. E. , S. E., S. W., and N. W. It 
was divided into two counties : Washington east of the Poto- 
mac, and Alexandria west. In July, 1846, the latter was retro- 
ceded to Virginia. The present area is about sixty square 
miles. 

The necessity of exclusive power on the part of Congress at 
the seat of government is abundantly manifest. Without it, the 
officers of the government might be interrupted in Exclusive 
their duties, the public archives and other property Power of 
injured, and Congress itself insulted. When the ongress. 
Continental Congress was in session at Philadelphia, the build- 
ing where they were in session was surrounded by some 
mutinous soldiers, clamoring for their pay. The executive gov- 
ernment of that State not giving to Congress adequate protec- 
tion, that body immediately adjourned to Princeton, New 
Jersey. 

No less necessary is it that the general government should 
have exclusive control of the places where forts, arsenals, etc., 
are erected. 

The district in which the seat of government is located is 
obtained bv cession from the State. The other _, _ 

J 1 ne rower 

places mentioned in the clause are purchased with Not Trans- 
the consent of the legislature of the State where fe [ re * from 

the State. 

they are located. In whichever manner ac- 
quired, the districts are under the exclusive control of Congress. 



I30 THE CONSTITUTION. I. VIII. 1 7. 

They hold to the government the same relation as the territories 
do. There is no transfer of political power from the State to 
the general government. The latter does not exercise legisla- 
tion by virtue of any authority derived from the States, but by 
virtue of the general powers granted by the Constitution. 

It was claimed, in a case before the Supreme Court, that Congress, 
when acting under this clause, must be considered as a mere local legisla- 
ture, and not as administering the supreme law of the land. "But the 
Supreme Court held directly the contrary — that the power belonged to 
' Congress as the legislature of the Union ; for strip them of that charac- 
ter, and they would not possess it. In no other character can it be exer- 
cised. . . . Congress is not a local legislature, but exercises this particular 
power, like all its other powers, in its high character, as the legislature of 
the Union.'" 1 

" The efficiency of the government is all derived from the Constitution, 
and is equal in all places within its jurisdiction. It is supreme every- 
where. It is inclusive of all subordinate governments, where there are 
any, and exclusive where there are none. It is permanently exclusive, if 
there can be no other. It is temporarily exclusive till a subordinate is 
instituted. It becomes exclusive again, if a subordinate is extinct, whether 
by right or by wrong ; and it remains exclusive, when it is so, till a subor- 
dinate is rightfully restored." 2 

As direct taxes are by Article I, Section 2, Clause 3, to be 
apportioned among the several States according to their re- 
Direct Tax on s P ec tive numbers, it might be thought that the 
the District of inhabitants of the District of Columbia would be 
o um ia. exem pt. But the Supreme Court has decided that 
Congress has the power to levy a direct tax on the District of 
Columbia and also upon the territories. Congress is not bound 
to do it, but the power is possessed, qualified in the same man- 
ner as in regard to the States ; i. e. , the tax must be in propor- 
tion to the population. A direct tax was levied upon the States 
in January, 18 15. In February of the same year a tax was 
levied on the District of Columbia. The direct tax of 



1 Farrar, page 360. Story, g 1226. * Farrar, page 363. 



I. VIII. 17. THE DISTRICT OF COLUMBIA. 131 

$20,000,000 a year, according to act of August, 1861, included 
the District of Columbia and all the territories then existing. 

In the cessions to Congress under this clause, there has gen- 
erally been a reservation of the right to serve State process, 
civil and criminal, upon persons found therein. Thus, these 
places can not be made sanctuaries for fugitives. 

On the 1 6th of April, 1862, slavery was abolished in the 
District of Columbia by act of Congress. At the same session 
of Congress (the second of the Thirty-seventh Slavery Abol . 
Congress), an act was passed declaring that there ished by Con- 
should be neither slavery nor involuntary servitude gres 
in any of the territories then existing, or which should be 
formed thereafter. In the District of Columbia provision was 
made to remunerate loyal owners for the slaves thus set free, 
not exceeding $300 each in the aggregate. For this purpose 
the sum of $1,000,000 was appropriated. 

In 1871 a territorial government was established for the district. It 

provided for a Governor, Secretary, Council (upper legislative house), 

Board of Health, and Board of Public Works, to be ap- 

1 i 1 t-. • t i c- T-i tt Territorial 

pointed by the President and benate. I here was a House Government 

of Delegates to be elected by the people. The district 

had also a Delegate in Congress. In 1874 the act was repealed, and 

until a new system could be framed the government was entrusted to 

three Commissioners, to be appointed by the President and Senate. 

In 1878 the government of the district was placed-under a 
Board of three Commissioners ; two to be appointed by the 
President and Senate for three years ; and the 

Present 

third, an officer of the Corps of Engineers of the Government, 
army, to be detailed by the President. These 
Commissioners have general charge of the municipal interests 
of the district, appointing the police, firemen, school trustees, 
and all other officers. They submit each year to the Secretary 
of the Treasury a detailed estimate of expenses, which, on his 
approval, is transmitted to Congress. If Congress approves the 



THE CONhll'l'iriHIII. I. 

iM die amount is appropr 

ipon tfc - rop- 

- of tie district. 

Clause iS. — To make all laws which shall he mni%sa »j and 

t ' - - -. v :>„T.'i r :~-;j 7 .T.r.r : ;•: :7v .-.-:. :. :r /-' ;"v 

r Pinckn - Ike c Dia- 

:a»- 
imnfief mir - - There was no oppos 

Powers af cfiscnssion in the Convention, bu . - - : oppos: 

Henry often 

:_zress was to overthrow tfi 7 aosc op^: 

.don assailed i: vehemence 

through the prejud: est the conventior. 

ts from _ ■-■:: ■ . - ■ 7 

in Tz 7 r . 

attire ough~ lobe i v aedtoa [ sjhts 

i :: : i : i~ 7 
which the separa:: re incon 

tent, or in w the 77: 

-i by tl: idual lea 

all laws passed by tfc* ng, ia 

! 

nsf r under the ant This 

igpeed to in conn: ":: : :' :_:t whole 7 
- " " - t : " . \ : . lg i - i . \ : 

?otmg 7 Mr. M 

:ed it. 
Writers on C : . " 



: page 19Q. 



I. VIII. l8. IMPLIED POWERS. 133 

for carrying into execution the powers vested in the general 
government by the Constitution, even if this clause had not 
been inserted. If the Constitution provides for a A Constitu . 
government, and invests it with powers, it follows tion Requires 
as an unavoidable inference that the legislative de- 
partment of that government can make the laws needful for 
carrying those powers into execution. Mr. Madison says, 1 
''Few parts of the Constitution have been assailed with more 
intemperance than this ; yet, on a fair investigation of it, as has 
been elsewhere shown, no part can appear more completely 
invulnerable. Without the substance of this power, the whole 
Constitution would be a dead letter." He proceeds to show 
the folly of attempting a positive enumeration of the powers 
necessary and proper for carrying their other powers into effect; 
that "the attempt would have involved a complete digest of 
laws on every subject to which the Constitution relates; accom- 
modated, too, not only to the existing state of things, but to all 
the possible changes which futurity might produce." No less 
chimerical would it be to enumerate the powers or means not 
necessary or proper for carrying the general powers into exe- 
cution. 

" Had the Constitution been silent on this head, there can be 
no doubt that all the particular powers requisite as means of 
executing the general powers would have resulted 

. ... Madison. 

to the government by unavoidable implication. 
No axiom is more clearly established in law, or in reason, that 
whenever the end is required, the means are authorized. 
Wherever a general power to do a thing is given, every partic- 
ular power necessary for doing it is included." Thus Mr. 
Madison. 

Mr. Hamilton uses similar language. 2 "It may be affirmed 
with perfect confidence that the constitutional operation of the 
government would be precisely the same if these clauses were 



1 Federalist, No. 44. 2 Federalist, No. 33. 



: :_ THE C I. ~ 

eii-ire! eated in article. 

The] arc :: 3e< i af afrni would fas e 

: -3TT and i r implk from 

Hamiltoix. 

g( venrn 

: : : ■ ' . . _ . - 

i A power ve^ed < Tth 

denial -ich are ne :om- 

plete and err This principle has 

TdlllhllllU. 

and has - vcr—rat from 1 7 S9 to 

\- - 

nnmera: laaaces in a nich 

in the progrt : . 

made use of incidental and implied means to exe- 
cute its power? 7 e almost infinite ed in their ram- 
plainer 

-. ■ 1 running-. 7. 1 

rresnppc ; irrcss 

then 

In the sarnr Tin I of 

sute* 

Habsas 

mt. 

N . 
1 Sai 

- 



I. VIII. l8. IMPLIED POWERS. 135 

Constitution that Congress might do the same, although there is no clause 
granting such authority. 

From the beginning of the government under the Constitution, 
laws have been enacted that could be justified only on the 
doctrine of implied powers. And all administra- 

The Exercise 

tions have recognized the same doctrine. Opposi- f implied 
tion to certain measures has often been based upon Powers b y *u 

Parties. 

their alleged unconstitutionality; but when the 
political party from which the opposition came has itself been 
placed in power, it has not hesitated to deviate quite as far from 
the strict letter of the Constitution. 

Among the acts which are indefensible on the theory of 
specially enumerated powers may be mentioned instances of 
the purchase of Louisiana; the embargo act of implied 
1807 ; grants of lands for railroads and canals; the 
annexation of Texas ; grants of lands for agricultural colleges, 
etc. 

"The most remarkable powers," says Judge Story, "which 
have been exercised by the government, as auxiliary and 
implied powers, and which, if any, go to the utmost 
verge of liberal construction, are the laying of an e Qf ^ arg0 
unlimited embargo in 1807, and the purchase of 
Louisiana in 1803 and its subsequent admission into the Union 
as a State. These measures were brought forward, and sup- 
ported, and carried by the known and avowed friends of a 
strict construction." 1 "The friends of the latter measure were 
driven to the adoption of the doctrine that the 
right to acquire territory was incident to national p u "chase! 
sovereignty; that it was a resulting power, grow- 
ing out of the aggregate powers confided by the Constitution ; 
that the appropriation might justly be vindicated upon the 
ground that it was for the common defense and general wel- 
fare." 2 

1 Story, l 1282. a Ibid, g 1286. 



136 t:-:i : . ■: : vz ldll 

t -ten th: ■ - - TaB- 

- . - : .::: wta : e bn don fo: nose 

::::: r r. : . ■ . - t : -_ — 

of c: - : wjimhiib L Those powers only mH" 

] : r : - ; ; - _-_-_ " ::c :': ■_.:. : 

_: " t Zd: 

Sec. 9. Clause 1. — _~~ ~~~ k 

- : 

■ 
importation, stm. 

I t ere mentioned were sLr r? The nse of 

^j r Jbaw. _ .ed; Ac 

one properly applicable to persons. 

I e clause permitted : :~ade 

180JL As the ctimmiltff . Icfe I ihe pro- 

-ich importation shon]: 
Actt : ] im itation ::' time \k n : ed also in 

bad r. int nould be e ec 7 : ten 

daHar^ « led 1 "ton was in fact 

never impc ~ angress. A: Sit -: 

years the fur -.:. -: as prohibited fey an act 

passed March : 1 : DiS. 

: . -".- : . ■ maed no na: olished 

::_*rr bad prohibite: :ion of 

:l : .-7 :. . ::.!::: isted upon : 

the sa 1 mission of si: 

. 7 : E - : . . 7 -. - 

7 - _• .. 7::.:.:i 

.7 



I rain aboli - r _ 



I. IX. 2. SLAVERY AND THE SLAVE-TRADE. 137 

In 1787 1 the Continental Congress passed an ''Ordinance 
for the government of the Territory of the United States north- 
west of the River Ohio," which provided that in 
the Territory there should ' ' be neither slavery nor sia^er* 5 
involuntary servitude otherwise than in punish- 
ment of crimes." 

The slave-trade to foreign countries was prohibited in 1794. 2 

The importation of slaves was prohibited in 1807, 3 the law to 
take effect January 1st, 1808. 

In 1820 4 the slave-trade was declared to be piracy, to be 
punished with death. 

Slavery was abolished in the District of Columbia by act of 
Congress in 1862, 5 and in the Territories the same year. 6 

The President's first proclamation as to emancipation of 
slaves in the rebel States was issued September 2 2d, 1862. 
The second proclamation, emancipating them, is dated January 
1 st, 1863. The coast-wise slave-trade was forever prohibited by 
act of July 2d, 1864. Maryland abolished slavery in 1864. 

The Thirteenth Amendment to the Constitution, abolishing 
slavery throughout the United States and all places subject to 
their jurisdiction, was proposed to the legislatures of the States 
by Congress, February 1st, 1865, and was ratified December 
1 8th, 1865. 

Clause 2. — The privilege of the writ of habeas corpus shall 
not be suspended, unless when in cases of rebellion or invasion the 
public safety may require it. 

A writ is a legal instrument or writing issued by a competent 
authority, commanding the performance or non-performance of 
some act by the person to whom it is directed. The writ of 
These writs were formerly written in Latin, and Habeas 
they are often designated by some important Latin Corpus, 
words contained in them. The words habeas corpus mean 



\July 13th. sMarch 22d. . sMarch 2d. *May 15th. 

"April 16th. 6 June 19th. 

A. C— 12. 



l n_. -:..':._- . _ " :ii : n : * — t s ./•::•: . - m - Msziut 
:., " ng 'CTinyetESii' run: :i:~' . n.:i_. fii.tr riTir ^ie- 

:: ..r : _i iir. . . . - /. nnitirir. . :-: 

jjKMei TTfPgB •TiTrrr-crrTmTFnr 

im: ^ -:;-::•: ... .it . nc p'^r .1.-71.1. :£ 
~. :/• :... . . ~; _:t vrr ilt t .-. ~ in t t r: . : ".:■: _:::._- 

~.i .'] .: : :"■ : 1.177. -t._ v: . :; "r/?'..;: :•; . i... me: :r 

.1 '.It L'." r .jl(. 117 1 -.1 II :7 1 t/7- 1 11 1... . t.l^.l. _. Ill 7 



snfi' . - i . i„ ittti: n . - 1 

mir lit :^i3 i^n :.— r.-ir: iIit£.iJ~ itt 



a' : ui.i* v- ll * 177.1 - _-. : :•:. . it ". trm . : 
.) Tiitir .juicrtn v ; :;: nm: :: . i- : . i" 
:r ... :: — ....:: i :/.-. i.. vn. ilt~ .-: iJiii 



MOB Bfl 



v— r. . . /::"-•: l;i : 71 ; 
- I . t7~ T.r ;_ "^.-t 



■ 

IfaECfarernii n. 

. . - ~~ ' /u/'f:. :>ryi:_ iur T :- 71177 -trior:, vntmitr : rT 

!Biitii***TnT°T — h *i^ ™ 

-r; ..:.-:...::: - .. r J--: :.tnr. li :.:* i 
nil " .: r •::."-::. i .it - — v-_ i.-.r n i.: :E.:.--t . 

IBtfi »w , 4injiJiur Tf ttf d&n .nr T :ni£ Miliar: 771 tt Ti : ttttt air 



77.1 -':l i. :._ 7. --.-. -■"_ _ -; „_ . „;_.-...■. 






I. IX. 2. THE WRIT OF HAEEAS CORPUS. T59 

passed by Congress to suspend the writ was in March. 1863. 
It had, however, been previously suspended by President 
Lincoln (April 27th, 1861) in an order to Lieutenant-General 
Scott. This had reference to the military line between Phila- 
delphia and Washington. This action of the Pres- 0pinion Q f the 
ident was in accordance with the opinion of the Attorney- 
Attorney-General, who is his legal adviser. Attor- 
ney-General Bates says : "If by the phrase, the suspension of 
the writ of habeas corpus, we must understand a repeal of all 
power to issue the writ, then I freely admit that none but Con- 
gress can do it. But if we are at liberty to understand the 
phrase to mean that in case of a great and dangerous rebellion 
like the present, the public safety requires the arrest and con- 
finement of persons implicated in that rebellion, I as freely 
declare the opinion that the President has lawful power to 
suspend the privilege of persons arrested under such circum- 
stances, for he is specially charged by the Constitution with the 
'public safety,' and he is the sole judge of the emergency 
which requires his prompt action.*' 

Most of those who believe that the Constitution gives to Congress the 
power to suspend the writ, would admit that in cases of exigency the 
.President mi^ht exercise the power without the authority M , , 

of Congress. Thus Mr. Multord -ays: --bince the lr. 
lature can not always act with the immediate energy which may be de- 
manded, and does not act continuously, in its supreme necessity, in the 
actual or in the imminent peril of the nation, it becomes not only the 
office but the imperative duty of the executive to assert ::. " x 

In the act of Congress passed March 3d, 1S63, the President 
was authorized to suspend the privilege of the writ in any case 
throughout the United States, whenever in his 
judgment the public safety should require it. The ~ T ^\ n !$&!' 
same act contained a clause of indemnity to the 
President and those acting under his orders for any arrest or 



1 The Nation^ page 183. 



:_: THE CONSTITUTION. I. IX. 3. 

imprisonment during the existence of the rebellion. The sus- 
[ 7i_sion of the writ of habeas corpus in the recent rebellion was, 
therefore, by the authority of both the legislative and executive 
departments of the government. 

7 ic suspension of the writ does not make it unlawful for the 
judge to issue the writ : but the writ having been issued, it is a 
sufficient return, or answer, to it to say that the privilege of the 
writ has been suspended. 

Though the writ of habeas corpus had never been suspended, either by 
the Congress or the President, until the late rebellion, it appears to have 
been suspended by military officers. "During the admin- 
Officers -lion of President V ::,I1 > i n the Pennsylvania 
'Whisk; :ection ' of 1794 and 1795, the military 
authorities engaged in suppressing it disregarded the writs which were 
: ] by the courts for tl re of the prisoners who had been capt- 
ured as insurgents. General Wilkinson, under the authority of President 
Jefferson, during the Burr Conspiracy of 1806, suspended the prr\ 
of this writ, as against the Superior Court of New Orleans. General 
Jackson assumed the right to refuse obedience to the writ of habeas corpus 
first :n Xew Orleans, in 1814, as against the authority of Judge Hall, 
when the British army was approaching tha: ind afterward, in 
Florida, as against the authority of Judge Fromentin. 

Clause 3. — X: bill of attainder or ex post facto law shall be* 
passed. 

A bill of attainder is a legislative act inflicting death or other 

punishment without a judicial trial. If the punishment is less 

than death, the act is now called in England a bill 

Attainder °^ P ams an d penalties. The legislature, in passing 

such a bil mes the functions of the judicial 

department of the government ; it pronounces senten : . 

inflicts punishments not determined by previous law ; and it 

ordinarily gives the person accused no opportunity" of defending 



1 Halleck's International Law and Laws of Wk page 17}, quoted by Hon. A. F. 
Perry. 



I. IX. 4. BILL OF ATTAINDER. 14I 

himself. ' ' Such was the bill of attainder in England, and 
such was it in this country at the time of the adoption of the 
Constitution. By that the whole subject was abolished and 
prohibited entirely and forever." 1 

An ex post facto law is one which makes an act criminal 
which was not criminal when committed. So a law would be 
ex post facto that inflicts a greater punishment than 

... n . . - •-, Ex Post Facto 

the law imposed when the crime was committed. Law _ 

The phrase applies only to penal and criminal 
laws, and not to civil proceedings which affect private interests 
retrospectively. A law abolishing imprisonment for debt would 
not be an ex post facto law, though it should apply to past con- 
tracts ; nor would a law rectifying some error, as making deeds 
of land valid which were void through some defect. 

In the case, ex parte Garland, the majority of the Supreme 
Court held that the law of January 24th, 1865, which required 
a prescribed oath of every attornev before he could 

Case of Gar- 

practice at the bar of a United States Court, was land# 

in violation of this clause, and therefore unconsti- 
tutional. Judges Chase, Davis, Miller, and Swayne dissented; 
in their judgment the act of Congress referred to was neither 
a bill of attainder nor an ex post facto law. 2 

Clause 4. — No capitation or other direct tax shall be laid unless 
in proportion to the census or enumeration hereinbefore directed to be 
taken. 

A capitation tax is a poll tax. The tax is levied not accord- 
ing to property but by the head. By Article I, Section 2, the 
Constitution provided that direct taxes should be 

Capitation 

divided among the States according to the popula- Tax> 

tion ; and in estimating the population, only three 
fifths of the slaves should be counted. This clause would 
therefore exempt two fifths of the slaves from every poll tax 

1 Farrar, page 420. - 4 Wallace, 3->4. 



: _.; tezl : ; : ~ r . i_ el. 

-: : nt :t1t _. :_~f-i _: v :.: :: 5.rnrt 





;_: -: i: 



Lf"_r£ -J' 



Z.L -It = — _ "" :.:.: " :.~ 

tar* 4^ 

7 : :: : ±ii ill lift - :. :n :t :"t : :: ;it -.: .::.: r ::" -_.- -r. 
- :.; : t : • : rzti : ~ n t i: zr —ft : : itm. z: : ' " t : - : i "" " : - " t 
d»K icl*i^ to dekqnttfioB of slaves. Tkxc 

~ :.f : _ . i ~ : . . < : ■: z : i n i: t . : :::.: * : r " i : _ 



;i: icitri ":': _:. :':-;: :: :._-—_:.: _.zr'-- z ~:: in error:? 



■ — - 
zzi :■:■ ?:" Torrzif f;::c i: ,i.~l 
u dsar* is id 

lit lr:r?51" 

"--_-> Tt v±rt toon 
^:_ ; : __ i ~i 1 1 v: n i; 



I. IX. 6. APPROPRIATIONS. 1 43 

first entered and cleared from a British port. But now a vessel 
can take her cargo from New York, or Boston, or New Orleans, 
directly to any European port. So a vessel can go from any 
one American port to any other. This latter constitutes the 
coasting trade, which is vastly greater in amount than the 
foreign trade. 

A former clause (Sec. 8, Clause i) requires all duties, im- 
posts, and excises to be uniform throughout the United States. 
This clause, providing that no preference should be given to 
one State over another in any commercial regulation, is of the 
same character. The different States were to be treated with 
absolute impartiality and equal justice by the general govern- 
ment. 

Clause 6. — No money shall be drawn from the treasury, but in 
consequence of appropriations ??iade by law ; and a regular statement 
and account of the receipts and expenditures of all public money shall 
be published from time to time. 

The propriety of this clause is obvious. It is a limitation on 
the Executive Department, and not on the Legislative. The 
appropriations are voted annually, the fiscal year 
ending on the 30th of June. These appropri- tions> 
ations are made for the different departments of 
the government with much detail, and the duties devolving on 
the committee on appropriations are very arduous and responsi- 
ble. The acts making appropriations for the year ending June 
30th, 1872, fill ninety-eight pages of the United States Statutes 
at Large. To show the minuteness of these appropriations, 
there are fifteen different specifications under the head of 
''Library of Congress." 

The account of the receipts and expenditures is annually 
reported to Congress by the Secretary of the 

m m . - . Finance 

Ireasury. lhese reports form an important part Report, 
of the executive documents of the government. 



: thz : _ . ' : : : z n : 

Z.l-lt _ — -" -;-": / ;:.'~ ■'-■ -'- Z : z r "'". Vz;z 
Sabs; and mo person iaUmg may office of profit or trust 
tnem 7 sk*Z r w&beut me consent of tie Congress^ accept of 

z . ~ : :/.- ". " ;_~ . . . / * ::z. :~ z\ -:. ~.z :. zzr. . ■ ~ ~. ~i 
■z :: z ~ vi. : r '. '.:.": 



N:: j zr-rf : - : :: 

t : : : z 



-~7 



?:': : : ="- 


fii: :: :~ 


in t ': - : : 


_ _ 




---: :: : 


i : if -.'-. : :: 


: : :. . : I : 


Z~ Hr rr: 



Tff 115 



alhawcr T or canfederatBon: grunt letters of marque and reprisal; 

:;:i -.:-:_ r-.:z z.~: ;/ ;~. ::: z'z. ;: -\:.zz r, ' :: z : '.J ; :. ' 
am m tender in pajmtnt of dots; pass any otH of mmmader, ex 

::-:: :';::: ' zz. .— ' z'.. . ■_-; -.-- :\. :'z~zzz:z .;- '..--...-_-. r. .-- 






I. X. I. PROHIBITIONS ON THE STATES. 1 45 

This section contains prohibitions and restrictions on the 
powers of the States. The Constitution is the expression of 
the will of the Nation; that is, of the people of 

. . Prohibitions 

the whole country. In the Constitution, the IN a- n the states, 
tion has declared that the general government 
shall exercise all the powers of National sovereignty, and that 
the States shall have authority in matters of local and municipal 
government. Powers pertaining to National sovereignty are 
expressly denied to the States in this tenth section. Nearly all 
these prohibitions are found also in the Articles of Confedera- 
tion, and some of them are expressed there in terms stronger 
than in the Constitution. 

Though we often hear the States spoken of as sovereign, 
they have never been so in fact. They were Colonies till 
the 4th of July, 1776, and then the United Col- _ 

^ J J ' . Sovereignty. 

onies became a Nation, and each Colony became 
a State. From that day to this the individual States have exer- 
cised none of the powers of sovereignty. It is not unfre- 
quently said that the States parted with their sovereignty when 
the Constitution was formed, implying that till then they pos- 
sessed sovereign powers. But they could not part with what 
they never possessed. The question is one of fact, and not one 
of theory. The Continental Congress exercised the powers of 
National sovereignty from the day of the Declaration of Inde- 
pendence till the present Constitution went into operation. In 
the language of Mr. Jay, afterward Chief Justice of the 
Supreme Court, "To all general purposes, we have uniformly 
been one people ; each individual citizen every-where enjoying 
the same national rights, privileges, and protection. As a 
Nation, we have made peace and war; as a Nation, we have 
vanquished our common enemies ; as a Nation, we have formed 
alliances, and made treaties, and entered into various compacts 
and conventions with foreign states." 1 



1 Federalist, No. 2. 
A. C— 13. 



I46 THE CONSTITUTION. I . X. I. 

The Articles of Confederation prohibited the States from 

* ' sending any embassy to, or receiving any embassy from, or 

entering into any conference, agreement, alliance, 

Treaties Etc. . • . 

or treaty, with any king, prince, or state, without 
the consent of the United States. In the Constitution the pro- 
hibition is absolute. Were each State to have the power to 
form alliances with foreign nations, it would be impossible to 
preserve the peace and harmony of the several parts of the 
Republic. The Union would soon be dissolved, and the Nation 
split into fragments. Could the States grant letters of marque, 
it would be in the power of any one to involve the rest in war. 
All these powers, being incident to national sovereignty, are 
thus wisely and necessarily prohibited to the States. 

The Articles of Confederation allowed the States to coin 
money, but gave to Congress the exclusive right to regulate the 

alloy and value of the coin. The power of the 
Money. States in regard to money was thus a qualified 

power. But the provision of the Constitution, 
prohibiting the States absolutely from coining money, is a mani- 
fest improvement on the previous system. 

The States are also prohibited from emitting bills of credit. 
"To constitute a bill of credit, within the Constitution, it must 

be issued by a State, involve the faith of the State, 
Credit. an( ^ be designed to circulate as money, on the 

credit of the State, in the ordinary uses of busi- 
ness." 1 Such bills may or may not bear interest; they may or 
may not be made a legal tender. Neither of these circum- 
stances would affect them as bills of credit. The State of 
Missouri issued loan certificates, bearing interest and redeem- 
able by the State, which were made receivable for taxes and 
debts, and by public officers in payment of their salaries. But 
the Supreme Court decided that they were bills of credit, and 
therefore unconstitutional. 2 A State may borrow money and 

*11 Peters, 257. 2 -l Peters, 410. 



I. X. I. PROHIBITIONS ON THE STATES. 147 

issue bonds therefor; such bonds are not bills of credit. The 
paper currency issued by the Continental Congress, and by the 
several States prior to the adoption of the Constitution, was 
known as bills of credit. 

The evils of the paper money issued by the States after the war of the 

Revolution are strikingly depicted by Mr. Madison. "The loss which 

America has sustained since the peace, from the pestilent 

rr r i ^i i Evilsof Paper 

effects of paper money oa the necessary confidence between M 

man and man ; on the necessary confidence in the public 
councils ; on the industry and morals of the people, and on the character 
of republican government, constitutes an enormous debt against the States 
chargeable with this unadvised measure, which must long remain un- 
satisfied ; or rather, an accumulation of guilt, which can be expiated no 
otherwise than by a voluntary sacrifice on the altar of justice, of the 
power which has been the instrument of it." x 

The States are also forbidden to make any thing but gold and 
silver coin a legal tender in payment of debts. The Constitu- 
tion virtually places the control of the whole sub- 
ject of money and the currency with the general Tender, 
government. The States have, indeed, established 
banks, and authorized them to issue notes for circulation, but it 
has been by sufferance, and not by Constitutional authority. 
The general government, in the establishment of national 
banks, have assumed the exercise of the power which it was 
manifestly the intention of the Constitution they should possess. 2 

The States as well as the general government are prohibited 
from passing any bills of attainder or ex post facto laws. There 
would be no propriety in allowing it to the former if prohibited 
to the latter. Very wisely such laws are entirely prohibited. 

No State can pass laws impairing the obligation of contracts. 
The obligation here spoken of is legal, not moral, obligation of 
"The spirit of the provision is this: A contract Contracts, 
which is legally binding upon the parties at the time and place 



1 Federalist, No. 44. See page 102. 



148 THE CONSTITUTION. I. X. I. 

it is entered into by them, shall remain so, any law of the 
States to the contrary notwithstanding." 1 

Under this clause the States are clearly prohibited from pass- 
ing bankrupt laws impairing the obligation of contracts made 
antecedently to their passage. The Supreme Court has de- 
cided, however, that the States may pass laws operating upon 
future contracts between their own citizens. 

Whether Congress can pass laws impairing the obligation of contracts, 
except as provided in the Constitution, as in the case of bankrupt laws, 
has been questioned. In a case before the Supreme Court, involving the 
question whether greenbacks could be used to pay debts contracted before 
the passage of the law making them legal tender, Chief Justice Chase 
maintained that Congress could not pass a law impairing the obligation 
of contracts without a constitutional authorization. 

The term contract is made to include grants, which are con- 
tracts that have been executed. A grant made by a State 
legislature is irrevocable. Whenever a law is in 

Legislative .. , .. . . . 

Grants. lts own nature a contract, and absolute rights have 
vested under it, a repeal of that law can not divest 

those rights or annihilate or impair the title so acquired. 2 
If a charter of a bank, which has been incorporated by a 

State, should prescribe the manner in which the bank should 
be taxed, the State could not subsequently alter the 
mode of taxation, not even if meanwhile the State 

should have adopted a new Constitution prescribing the manner 

in which banks should be taxed. 

So a charter of a college is a contract which the legislature 

of a State can not annul or impair. The State of New Hamp- 
shire attempted to change the charter of Dart- 

cone^clse. mouth College, transferring the government of the 
institution from the old charter trustees to new 

trustees appointed under the legislative act. But the action of 



1 Tiffany, page 217. 2 Story, g 1391. 



I. X. 2. PROHIBITIONS ON THE STATES. I49 

the legislature was declared by the Supreme Court to be uncon- 
stitutional. 

Clause 2. — No State shall, without the consent of the Cofigress, 
lay any Imposts or duties on imports or exports, except what may be 
absolutely necessary for executing its inspection laws ; and the net 
produce of all duties and imposts laid by any State on i??iports or 
exports, shall be for the use of the treasury of the United States ; 
and all such laws shall be subject to the revision and control of the 
Congress. No State shall, without the conse?it of Congress, lay 
any duty of tonnage, keep troops or ships of war in time of peace, 
enter into any agreement or compact with another State or with a 
foreign power, or engage in war, u?iless actually invaded, or in such 
imminent danger as will not admit of delay. 

The authority to levy duties on goods imported belongs prop- 
erly to the general government. The exercise of this power 
by the several States, prior to the adoption of the 
Constitution, was one of the chief causes of the Duties, 
overthrow of the Articles of Confederation. The 
whole power is now vested in Congress, and the States are by 
this clause prohibited from laying any duties except with the 
consent of Congress, and the revenue obtained in such case 
must be paid into the treasury of the United States. 

The object of inspection is to secure a certain standard of excellence 

in commodities offered for sale, so that purchasers may not be imposed 

upon. An inspector is appointed under State law, whose 
, . . n 1 it • Inspection, 

duty it is to examine flour, pork, etc., and certify as to its 

quality. If it comes up to the required standard, he stamps or brands 
the cask or package accordingly. Sometimes the inspector is paid by the 
city which appoints him, and sometimes his compensation is obtained by 
means of fees. To prevent the State from receiving any revenue from 
this source, the Constitution requires that all fees beyond the cost of in- 
spection shall be paid into the national treasury. 

A State can not lay duties on imports or exports indirectly. 
Maryland once required all importers of foreign goods, and 



150 THE CONSTITUTION. I. X. 2. 

those selling the same in the original package, to take a license 

from the State, for which a fee of fifty dollars was to be paid. 

The Supreme Court decided that the law requiring: 

Case of . . . . 

Maryland. tms was unconstitutional, because it virtually levied 

a duty on the articles imported. 
The Constitution in no other clause refers to taxation of any 
kind by State authority. But it every-where recognizes the 
existence of the States as governments, and thus 

Taxation by , . . 

states. presupposes their power to levy taxes, ror the 
support of its local government a State may tax its 
citizens, but it may not levy duties on imports, save with the 
consent of Congress, and for inspection purposes. And the 
Supreme Court has decided that a State can not levy a tax that 
shall in any way obstruct the legislation of the general govern- 
ment. Thus a State can not tax United States bonds or 
Treasury notes, or a bank chartered by the general government, 
except as provision is made for such State taxation by Con- 
gress; while the United States may levy a tax upon State 
bonds, or banks chartered by the States. ' ' When Congress 
tax the chartered institutions of the States they tax their own 
constituents; and such taxes must be uniform. But when a 
State taxes an institution created by Congress it taxes an instru- 
ment of a superior and independent sovereignty, not represented 
in the State legislature." 1 

Duties on tonnage are duties on ships. A ship that can carry 

five hundred tons of freight is said to be of five hundred tons 

burden. Where duties are levied upon ships, it is 

Tonnage. . . . 

in proportion to their capacity, or the amount of 
freight they can carry. If the States are prohibited from raising 
a revenue from goods imported, they should also be prohibited 
from taxing the ships in which the goods are brought. 

The other prohibitions in this clause refer to matters of 
national sovereignty. The whole control of questions relating 

1 Story, \ 1053. 



2. I. I. THE EXECUTIVE DEPARTMENT. 151 

to peace and war, treaties, alliances, etc., is placed in the general 
government ; and nothing can be done by the States in these 
matters except under its direction. It has been seen that there 
are implied as well as express prohibitions on the powers of the 
States. Thus no State can tax the bonds issued by the United 
States. And State statutes of limitations, and State insolvent 
laws have no operation upon the rights or the contracts of the 
United States. 

ARTICLE 11. 

The Executive Department. 

Sec. 1, Clause i. — The Executive power shall be vested in a 
President of the United States of America. He shall hold his office 
daring the term of four years, and, together with the Vice-president, 
chosen for the same term, be elected as follows : 

From the Declaration of Independence to the time when the 
Constitution went into operation, there had been no Executive 
Department. In the Convention there was no dif- 
ference of opinion as to the propriety and necessity 
of establishing such a department distinct from the 
Legislative. There was not the same unanimity as to the other 
questions, viz., whether the power should be vested in a single 
person, what should be the term of office, how the Executive 
should be chosen, and whether the office should be held a second 
time by the same person or persons. The vote in the commit- 
tee of the whole was "That a national Executive be instituted, 
to consist of a single person, to be chosen by the national legis- 
lature (Congress) for the term of seven years." Subsequently 
the committee of detail reported the same clause, with the ad- 
dition that he should not be elected a second time. Repeated 
efforts were made in the Convention by the delegates from 
Pennsylvania to change the mode of election, so that the Ex- 
ecutive might be elected by the people, or by electors, instead 
of by Congress; but only two States voted for the change. It 



The Execu- 
tive. 






r^z 



TTIC 



if" ane fem eac:: 

v'u ■:: ---: " : : --' r :.. t v:.; jjhi'I' 7 uiiintec. 

.. - - - ~ - . - - . 

:n-:rr. . . :■ ; : 

nan. 7. ::-"0: --..", tm7)ii~ ii ':: iicz'n :.:';.: 
fiee&JenesSi. Z . ■"'—"« riU . : icmin- 

± enacted: 



• I..:.; : 



miifa: Bk 



_ le na:: iGvnmenr is best 



vm:;i : - r;~. :.:..-. .. n r — n- Tiac ; r ernmen.r .: i-:::r vim::i 

idmirL 

asr- Kegu 

. - : . - - - - -. - - ..-. - ;H 




. 



Llil :r-::i: 



Hto wKS n 



" : :.v -:; -ahiA :e ' ::;r--:_ 
:iir T ?:■:-:■":-: las nt Tinvir :y 

vncuu l.i T a v ::;n:"':rj — :iu; : in 

- ^; i :ie ?:: _ - 



.. - 

::e ..nih'cr.iom. 
in Tie pMU 
not in '.iim 






-...-:-. 7: - - . . - 7 - 

- ~i ■ :i :ie 
- . ■ - ". 7". - I.: - . : - ' " - " 
:. :< " idne; n v. - '. n.srr.ir: :. "iare TT, ir r .;. r s rested n 
7"': .itiiriir. 77 irne 

mmi : : - - lent 

" - - ". - . - - . 

- :j 7 ± Denartmenr. 

"lie J.TWS ass: 

: : - . - L 

- . .. - : : -•-.: •!:_:; .: r ■...:.:.:"_ 

i i i:-; :-: n "".v.. ~--t ne vn le r_mr ne 

-.:r-n fi - ~:e 7--:.;:-:" :.:■ ._■: .>: ,■-. - -:.\ 

- 



irffTTT 



2. I. 2. THE EXECUTIVE DEPARTMENT. 1 53 

term. Both these provisions were subsequently changed; the 
term of office being made four years, and the restriction to a 
single term having been stricken out, so that the people may elect 
the same man to the presidency as many times as they please. 

Seven Presidents have been re-elected; viz., Washington, 
Jefferson, Madison, Monroe, Jackson, Lincoln, and Grant. 
Four have been nominated for a second term, but 
not elected; viz., John Adams, John Quincy R^eiecte/ 
Adams, Van Buren, and Fillmore. Mr. Fillmore 
was the candidate of a third party. No President has been 
nominated for a third term. 

The question of one presidential term has been much agitated. 
It is doubtful whether the Convention acted wisely in reducing 
the length of the term from seven years to four, 
and in striking out the clause forbidding a re-elec- Tern? & 
tion. "The election of a supreme executive 
magistrate for a whole nation affects so many interests, ad- 
dresses itself so strongly to popular passions, and holds out such 
powerful temptations to ambition, that it necessarily becomes a 
strong trial to public virtue, and even hazardous to the public 
tranquillity. * * This is the question that is eventually to 
test the goodness, and try the strength of the Constitution." 1 

Besides the excitement attending the election of the executive head of a 
great nation, which is so great that Mr. Paley condemns all elective mon- 
archies, and thinks nothing is gained by a popular election 

.... . ., ' , . e . Objections to a 

worth the dissensions, tumults, and interruptions of regular R e _ e i ec tio 

industry with which it is inseparably attended, there is 
the unfavorable influence on the President himself. It is natural that he 
should desire the approbation of the people as manifested by a re-election. 
But the clanger is that this desire may tempt him to shape his administra- 
tion so as to secure a renomination. 

Clause 2. — Each State shall appoint, in such manner as the 
legislature thereof may direct, a number of Electors equal to the 
whole number of Senators and Representatives to which the Stale 

1 Kent 1. p;ge 273. 






tsEOn Jbz &rqgrs5BS~ Bait ran Sfituitw ear 

. \' ci njTi:. rr 

jual 1 - ■ 



t\ ..... ri ; [j 



i-.tsr 



- I - • ..• - 



htff wEs i :sen nn &mr diferTtrn: tramfe-^ 

; " n " . ... " - . ■ . 

~".Kt i ".: r ~v; :i~:.:i ;iir: :v nit Lt:ri;-jii;~ii"t :~ nit 

" - - - - - ..: : . ■ '.: : : - : : 

- ■ : - 
" n 
:--.'- ■ : i dr ': _ t : :~ vtrt 



TKiii'.fi :." nit :...::■: "":.:'::.: t :j :-:!.: ti" -t-: :.: ; n~ T isi:ii :i 

"" Lut Hit ~ - 
-:.".'." : - ::it _ . : " v. - 
: lit : - ' : - .initr .: - 

- 

r ::::::: 

II ill': Hi ~± HUH It lliir: Z] Hit ; H ' :tt: 1.1 ■ : ■: HtttT I] :-."::--:- 
% 1 H 1 r % flK 

_i : . ' ; lit z ir."::: :r:_ ~ ..: f t :.; 
a: i] it:: h t" - — --::-- 

7 j - . : : \ : : . - - \. a - Hit i nn . - - I. - ■ - 

tH nit .m:» lit ":-._-". " 

Z - TLA - ' 

.:. : 7v -■ : 

I : : 

I ~ - - . - - - -_■■_ _ -_ ■ . - - . — : 

7: t TTTtfrnfliimilL ~nftm5i 

- : . ~ . . _: _ - 



EliiurcoTE 



- 






2. I. 3. THE EXECUTIVE DEPARTMENT. 155 

ratified by three fourths of the legislatures of the States, 
became valid as a part of the Constitution Sep- 
tember 25th, 1804. The original clause will be ment . 
found in the note. 1 The Amendment substituted 
for it is Article XII of the Amendments, and is as follows : 

The Electors sjiall meet in their respective States, and vote by 
ballot for President and Vice-president, one of whom, at least, 
shall notrbe an inhabitant of the same State with themselves ; they 
shall na7iie in their ballots the person voted for as President, and in 
distinct ballots the person voted for as Vice-president, and they shall 
make distinct lists of all persons voted for as President, and of ah 
persons voted for as Vice-president, and of the number of votes for 
each, which lists they shall sign and certify, and transmit sealed to the 
seat of the government of the Ufiited States, directed to the President 
of the Senate. The President of the Senate shall, in the presence 
of the Senate and House of Representatives, open all the certificates, 
and the votes shall then be counted; the person having the greatest 
number of votes for President shall be the President, if such number 
be a niajority of the whole number of Electors appointed; and if no 



1 Clause 3.— The Electors shall meet in their respective States, and vote by ballot 
for two persons, of whom one at least shall not be an inhabitant of the same State with 
themselves. And they shall make a list of all the persons voted for, and of the num- 
ber of votes for each, which list they shall sign and certify, and transmit sealed to the 
seat of the government of the United States, directed to the President of the Senate. 
The President of the Senate shall, in the presence of the Senate and House of Repre- 
sentatives, open all the certificates, and the votes shall then be counted. The person 
having the greatest number of votes shall be the President, if such number be a ma- 
jority of the whole number of Electors appointed; and if there be more than one 
who have such a majority, and have an equal number of votes, then the House of 
Representatives shall immediately choose by ballot one of them for President: and if 
no person have a majority, then from the five highest on the list, the said House shall 
in like manner choose the President. But in choosing the President, the votes shall 
be taken by States, the representation from each State having one vote. A quorum 
for this purpose shall consist of a member or members from two thirds of the States, 
and a majority of all the States shall be necessary to a choice. In every case, after 
the choice of the President, the person having the greatest number of votes of the 
Electors shall be the Vice-president. But if there should remain two or more who 
have equal votes, the Senate shall choose from them by ballot the Vice-president, 



:-: THE :ONSTITCTIO: 2. I. 3. 

person have suck majority, then fr: ~hest 

numbers, not exceeding three ; on the Hst ef tht 

the House of Representatives shall cheese immedi 
ballot, the President. Rat week President, the votes shall 

he take* hw States, the r efnse m ta iiem from each State having one 
vote ; a quorum for this purpose shall consist of a member or mem- 
bers from two thirds :nd a majority *of all 1 
shall 'J choice. And if the Jz ~ Represemta 
shall wet cheese F sidewt, whenever the r 

- ' 

then the lice-president shall President, f the 

death or other constitutional disability of the President. The person 
hosing the greatest number ef votes as ::nt shall be the 

of Betters appointed, and if we person hem a wm em from 

;.":..' ,~ - ';_-": vr •: . '--;-: ■- .-'.-• /;.-; .-;, .v\;- ; - ;;;.". :':::: :':-: ',':,:- 

president ; a quorum f pmrfmse sheM vjo third 

:': :. " .': ";.■■;'-.■- .•-' Si:::":. z-.S z -:.; ■■-.-; / :' : \ '::': ■::.-.; .-•- 

'::::. I 
gjMe te the office S zilent shall he eligible te ihz: -f ^esi- 

z. ■:: ;/ :':.: Vz::z Sz::::. 

.-. : cording to the original clause the Electors were to vote for 

two persons without designating either as President or Vice- 

. president- The one who had the greatest number 

- ~5 "--— c -Tit t r 

; ,.-t °* v otes, provided that number was a majority of 

all the votes cast, was to be the President and the 

other the Vice-president If two had the same number, being 

a majority, the House of Representatives was to choose one of 

them for President If no one had a majority, the House of 

~ 7 resentatives was to choose a President from the five highest 

The chief points of difference between the methods are these 

Xm : : according to the Amendment each Elector 

votes for President as such, and also for Vice- 
en ce. 

president; and if the election goes to the H: 



2. I. 3- THE EXECUTIVE DEPARTMENT. 157 

of Representatives, the choice is from the three highest, instead 
of from^z^, as was provided in the original article. 

At the first election General Washington was voted for by- 
each of the Electors, 69 in number. Mr. John Adams, who 
became Vice-president, as having the next highest 

r . , , . First Election. 

number of votes, received only 34; the remain- 
ing 35 votes having been divided among ten candidates. 

At the second election, in 1792, General Washington was 
again elected unanimously, receiving 132 votes. 1 
Mr. Adams was re-elected Vice-president, receiv- ec ° t " on 
ing 77 votes, a majority of the whole. 

At the third election, in 1796, Mr. Adams was elected Presi- 
dent, receiving a small majority of the votes; and 
Mr. Thomas Jefferson became Vice-president, J ^ ion 
though he had not a majority. 

At the fourth election, in 1800, Messrs. Jefferson and Burr, 
who belonged to the same political party, had the same number 
of electoral votes, being a majority of the whole ; 

.' & J J f Fourth Elec- 

and thus the choice devolved upon the House of tion goes to 
Representatives. There were sixteen States, of the House - 
which eight voted for Jefferson, six for Burr, and two were 
divided. They continued to vote thus for thirty-five ballotings, 
occuping seven days, nominally without adjournment. On the 
thirty-sixth ballot the two divided States voted for Jefferson, 
and so he became President, and Aaron Burr Vice-president. 
It was this difficulty that led to the amendment of the Constitu- 
tion, which Amendment was ratified before the fifth election 
in 1804. 

The election of President has devolved on the House of 
Representatives in one other case. In the fall of 1824, Andrew 
Jackson received 99 Electoral votes, John Quincy . . 
Adams 84, William H. Crawford 41, and Henry 
Clay 37. General Jackson lacked 32 of a majority, and the 



1 James Monroe in 1820. received all the Electoral votes but one. 



158 THE CONSTITUTION. 2. I. 3. 

choice devolved on the House of Representatives. As the 
choice must be from the three highest, Mr. Clay could not be 
voted for. Of the twenty-four States, thirteen voted for Mr. 
Adams, seven for General Jackson, and four for Mr. Crawford. 
John C. Calhoun, the candidate for Vice-president on the ticket 
with General Jackson, was elected, having received 182 votes. 
In this case the President and Vice-president belonged to dif- 
ferent political parties. 

Once only has the choice of Vice-president devolved on 
the Senate. In the fall of 1836, Martin Van Buren re- 
ceived 170 votes out of 294 for President, and was 
V 'b P Senate 611 e l ecte d : Richard M. Johnson failed of an election 
to the vice-presidency by one vote, having re- 
ceived 147. He was chosen by the Senate. 

Practically the people vote for President and Vice-president, 

and it is known who is to be the next President long before the 

Electoral College convenes. Thus the voting by 

ectora o - ^ Electors has become a mere form, though it 

ing a Form. ' © 

was not so intended. Various plans have been 
suggested in respect to the mode of electing the President, but 
Congress has never yet proposed an amendment since the Con- 
stitution was altered in 1804. By the present mode a candidate 
may have a large majority of the Electoral votes, and yet be in 
a decided minority so far as the popular vote is concerned. 

By the original article a Vice-president could not be chosen 

till the President had been chosen ; a failure in the choice for 

, the first office would involve therefore a failure in 

Advantage of 

the Amend- the second also. The Amendment avoids this diffi- 
ment. culty, by providing that the Senate may choose a 
Vice-president if no one has been chosen by the Electoral vote. 
In the failure by the House of Representatives to choose a Presi- 
dent by the 4th of March, the Vice-president already chosen by 
the Senate will act as President. 

It is usual for the two Houses to meet in the House of Rep- 
resentatives, when the votes are opened by the President of the 



2. I. 3- THE EXECUTIVE DEPARTMENT. 159 

Senate, and handed to tellers who count the votes and announce 
the result. 

In some cases objection has been made to the Electoral re- 
turns from a State on the ground of illegality, or a State has 
sent two sets of votes. In every case but one the 
majority for one of the candidates has been so Returns 
large that the result would not have been affected 
on which side soever the disputed votes were counted. In 1876 
double returns were received from a number of States, and it 
was known that the election depended on these 
votes. Unfortunately the Constitution does not "g^" ° 
point out the method of deciding such questions. 
As the Senate was Republican and the House Democratic the 
problem had in it elements of danger. The difficulty was met 
in this way. 

In January, 1877, an act was passed, applicable to that elec- 
tion only, that no vote of a State should be rejected except by 
concurrent vote of both Houses, and that all cases of two or 
more sets of votes from the same State should be referred to a 
Commission of fifteen, composed equally of Senators, Repre- 
sentatives, and Justices of the Supreme Court. The cases 
referred were those of Florida, Oregon, South Carolina, and 
Louisiana. These were all decided by a vote of eight to seven, 
and Rutherford B. Hayes was elected by a vote of 185, Samuel 
J. Tilden having 184. 

An act was passed in February, 1887, "to provide for and reg- 
ulate the counting of the votes for President and Vice-president, 
and the decision of questions' arising thereon." It provides that 
the determination by the States, under State law, of all contests 
as to the appointment of Electors shall be final. In case, how- 
ever, of double returns being made from a State, or if objec- 
tions are made to the certificate of the vote of a State, the law 
prescribes the action of Congress. The method of procedure 
in counting the votes is made more explicit than in pre- 
vious legislation. 



l6o THE CONSTITUTION. 2. I. 4. 

Clause 4. — TJie Congress may determine the time of ehoosing the 
Electors, and the day on which they shall give their votes ; which day 
shall be the same throughout the United States. 

After the Constitution had been ratified by the requisite 
number of States, the Continental Congress appointed the first 
Wednesday in January, in 1789, as the day for 
choosing Electors, the first Wednesday in Febru- 
ary for the Electors to assemble and vote for President, and the 
first Wednesday of March as the day on which to commence 
proceedings under the new Constitution. 1 The first Wednesday 
of March was the 4th day of the month, in the year 1789. 

In 1792 an act was passed requiring that the Electors be ap- 
pointed within thirty-four days preceding the first Wednesday in 
December; that the Electors should meet and give their votes 
on the first Wednesday in December ; that the votes should be 
counted on the second Wednesday of February; and that the 
Presidential term of four years should commence on the 4th 
day of March. The last two of these provisions remain in force. 
Since 1845 tne Electors are chosen on the Tuesday next after 
the first Monday in November; and by act of February, 1887, 
the Electors vote on the second Monday of January. 

Each State may provide for filling any vacancy which may occur in its 
college of Electors. By the Amendment to the Constitution made in 
1804, if the House of Representatives should not elect a President by the 
4th of March, the Vice-president becomes President. The 4th of March is 
thus virtually made by the Constitution, as well as by statute, the day 
when a new presidential term begins. 2 

The Electors in each State make and sign three certificates of all the 
votes given by them, one of which is to be forwarded by special messenger 
to the President of the Senate at Washington, one is to be sent to him by 
mail, and one is to be delivered to the judge of that district in which the 
Electors meet. 



1 Journal Cont. Cong., XIII, page 105. 

- A resolution has been introduced into the Senate proposing an amendment to the 
Constitution making the presidential term begin April 30th. 






2. I. 5. THE EXECUTIVE DEPARTMENT. l6l 

Clause 5. — No person, except a natural-born citizen, or a 
citizen of the United States at the time of the adoption of this Con- 
stitution, shall be eligible to the office of President : 

' a . . Qualifications 

neither shall any person be eligible to that office who of the 
shall not have attained to the age of thirty-five yea?s, President. 
and been fourteen years a resident within the United States. 

At the time of framing the Constitution, a number of men of 
foreign birth were among the most prominent in the nation, 
some of them being members of the Convention. This excep- 
tion in favor of those who were citizens at the time the Consti- 
tution was adopted was a mark of respect to them. 

A residence abroad on official duty would not incapacitate one 
from holding the office of President. Mr. Buchanan had been 
Minister to England just prior to his election to the presidency 
in 1856. 

Clause 6. — In case of the re7?wval of the President from office, 
or of his death, resignation, or inability to discharge the powers and 
duties of said office, the same shall devolve on the Vice-president; and 
the Congress may by law pi'ovide for the case of removal, death, resig- 
nation, or inability, both of the President and Vice-president, declar- 
ing what officer shall then act as President, and such officer shall act 
accordingly, until the disability be removed, or a President shall 
be elected. 

Until near the close of the Convention that framed the Con- 
stitution, nothing had been said of a Vice-president. The 
Senate had been authorized to choose their own 
presiding; officer, and in case of the death or re- e J lc t" 

r ° ' president. 

moval -of the President of the United States, the 
President of the Senate was to become President. The Con- 
vention had decided that the President should be elected by 
Congress; but there was difficulty in arranging the details, and 
the committee of one from each State finally reported a new 
plan, providing for an election of President by means of Elec- 

A. C.-14. 



1 62 THE CONSTITUTION. 2. I. 6. 

tors appointed in the several States. This plan seemed to 
render desirable the election of a -Vice-president, and thus the 
Constitution made provision for such an officer. 

We have seen that, according to the Amendment adopted in 1804, the 
Senate may choose a Vice-president immediately, if there has been no 
election by the people. If, therefore, by possibility the House of Repre- 
sentatives, when the election devolves on them, should fail to elect a 
President by the 4th of March, the Vice-president would become Presi- 
dent. 

Congress provided by law, in 1792, 1 that in case of the re- 
moval, death, resignation, or inability of both President and 
„ .. . , Vice-president, the President pro te7Jipore of the 

Presidential r m r 

Succession Senate, and in case there is no such President, the 
by Law of Speaker of the House of Representatives should 
act as President until the disability be removed or 
a President be elected. If the Vice-president becomes Presi- 
dent, he holds the office during the remainder of the term for 
which the President was elected ; but the President pro tempore 
of the Senate, or the Speaker of the House, would act only till 
a new President could be elected. Such special election would 
be held at the same time of the year as the regular election. 
In 1886 a law was passed substituting for the President pro 
tempore of the Senate and the Speaker of the House the mem- 
bers of the Cabinet, in the following order : the 

By the Law 

of 1886. Secretary of State, Secretary of the Treasury, 
Secretary of War, Attorney-General, Postmaster- 
General, Secretary of the Navy, Secretary of the Interior. If 
Congress be not in session, or would not by law meet within 
twenty days, a special session is to be called. As by the law 
of 1792, so the officer acting as President under this law would 
act only till a new President could be elected. 

The act of 1792 provided that "whenever the offices of the President 
and Vice-president should both become vacant," a special election should 



1 March 1st. 



2. I. 7. THE PRESIDENTIAL SUCCESSION. 1 63 

be held. This would include the case of non-election at the regular time, 
for which the Constitution does not provide ; hence the constitutionality 
of that part of the act has been doubted. 

As the Constitution seems to distinguish between members of Congress 
and civil officers, in Article I, Section 6, Clause 2, and as the President 
must "commission all the officers of the United States" (Article II, 
Section 3), it has been maintained by some that neither the President of 
the Senate nor the Speaker of the House is an " officer" in the meaning 
of the Constitution; and, therefore, that the act of 1792 had no constitu- 
tional authority, as the Constitution authorizes Congress to declare what 
"officer" shall act as President. This objection was made when the bill 
was under discussion in the House of Representatives, and that body 
substituted the Secretary of State in place .of the President of the Senate 
and Speaker of the House ; but as the Senate refused to concur in this 
substitution, the House receded from its amendment. The law of 1886 
obviates this objection. 

A vacancy in the office of President has occurred four times, 
and in each instance by the death of that officer. General 
William Henry Harrison died April 4th, 1841, just 

. . . Four 

one month after his inauguration, and was sue- vacancies, 
ceeded by John Tyler, April 6th. General Zachary 
Taylor died July 9th, 1850, and was succeeded by Millard 
Fillmore, July 10th. Abraham Lincoln was assassinated on the 
night of April 14th, 1865, and was succeeded by Andrew 
Johnson, April 15th. James Abram Garfield died September 
19th, 1 88 1, from a wound by an assassin, and Vice-president 
Chester A. Arthur became President. The case of the removal 
of both President and Vice-president has never occurred. 

Clause 7.— The President shall, at stated times, receive for his 
services a compensation, which shall neither be increased nor dimin- 
ished during the period for which he shall have been elected, and he 
shall not receive within that period any other emolument from the 
United States, or any of them. 

The salary of the President was made twenty-five thousand 
dollars a year, and that of the Vice-president five thousand 



. / ■ - fifo 

V - - - 

ndsec tc noiisaiifi dolia~ 

-.;_:.:.:,i Ml-::. ; i :"'; :.:.'_ re~a:.eL i: eirh: thousand Tan 
-_. A furr. - : - : 

-- 






she. 

- 

administer- -"-_-: 

me Court, in conx- 
. arat : -j-emonies. which are 
- _ lla 

■ ■ Tyl 

eemi I . - 

- 

■ - - - - 

done: "by Messrs. Fillmore. Johnson, and Arthur. It - 
proposed that Mr. Tyk 
d was declined. T3m 

- - . 

- " - - 

i 

: b -. - 

ofii a 

it: 2, Clause I. — Ti _ r :ommai. 

of the army an: if the U 

ailed :?. -:ited 



2. II. I. THE EXECUTIVE PARDONS. 1 65 

States ; he may require the opinion, in writing, of the principal 
officer in each of the executive departments, upon any subject relating 
to the duties of their respective offices, and he shall have power to 
grant reprieves and pardons for offenses against the United States, 
except in cases of impeachment. 

Most writers on the Constitution have regarded the authority 
to command the army and navy as necessarily belonging to the 
Executive Department. This is the opinion of Story and 
Kent and Duer. 

The only reference in the Constitution to the heads of the 
executive departments is found in this and the following clauses. 
The language implies that such departments would The Heads 
be established, but the Constitution neither in of 

Section 8 of Article I, nor elsewhere, specifies the De P artment8 - 
power to establish them as one of the powers belonging to 
Congress. The heads of these departments are the advisers of 
the President. Collectively they are called his Cabinet. They 
have frequent meetings at which measures are discussed, and in 
addition their written opinions are given to the President when- 
ever he requires them. The opinions of the Attorneys-General 
fill a number of volumes. 

The President, and not the Cabinet, is responsible for the measures of 
the administration ; yet, as heads of departments established by law, 
duties are imposed upon them which can not be neglected. Their posi- 
tion may thus become one of no little delicacy. 

A reprieve suspends for a time the execution of a sentence, 
especially when the criminal has been sentenced to death. A 
pardon is a full release from the punishment which 

ii i • i • /-!• i mi Reprieves and 

would otherwise be inflicted. The power to re- pardons, 
prieve or pardon implies the possible imperfection 
of human justice. Circumstances may come to light after a 
trial which, had they been known before, would have secured a 
different result. This prerogative of mercy is found in all civil- 
ized governments, and it is properly lodged with the Executive. 



l66 THE CONSTITUTION. 2. II. I. 

Our Constitution gives it to the President, except in cases of im- 
peachment. 

The language of the Constitution is that the President shall 
have power "to grant reprieves and pardons." For the mean- 
ing and use of the expression "to grant pardons," we are re- 
ferred to the English law, which allowed the king, as the 
sovereign, to pardon before trial as well as after. Was this the 
When May a intention of the framers of our Constitution ? Mr. 
Pardon be Justice Field, in giving the opinion of the Supreme 
Court in the case of Garland, said: "The power 
thus conferred is unlimited, with the exception stated; it ex- 
tends to every offense known to the law, and may be exercised 
at any time after its commission, either before legal proceed- 
ings are taken, or during their pendency, or after conviction 
and judgment." 

Mr. Tiffany views the matter differently. ' ' To pardon or 
reprieve a man implies that he has become, in the eye of the 
law, the subject of punishment to be inflicted upon him. 
It implies that the law has pronounced him guilty, and de- 
nounced upon him. the penalty. The Executive, as an officer 
of the law, can know nothing of the guilt or innocence of a 
party, or of his need of a reprieve or pardon, until his guilt has 
been judicially ascertained. No reprieve or pardon can, in law, 
be granted until there be that from which a reprieve is needed, 
or for which a pardon is demanded." ' "There may be cases, 
as in rebellion or civil war, where a large class of citizens may 
need, and public policy may require an amnesty in their be- 
half. But such exigency addresses itself to the legislative, not 
to the executive department of government." 2 

This seems to have been the view of Congress when, by act 
of July, 1862, they authorized the President to extend pardon 
and amnesty by proclamation to those in rebellion against the 
government, with such conditions as he might deem expedient. 



1 Tiffany, page 335. 2 Ibid, page 338. 



2. II. 2. THE EXECUTIVE TREATIES. J 67 

On the 3d of December, 1863, President Lincoln issued an 
amnesty proclamation, referring to this action of Congress. 
Other proclamations were issued by Mr. Lincoln and Mr. John- 
son prior to the repeal of the section authorizing such offers of 
amnesty. The latter, however, issued proclamations of like 
character after the repeal — January 19th, 1867 — giving the Con- 
stitution as his authority, in answer to an inquiry made by the 
Senate. 

In some of the State Constitutions the Governors are author- 
ized to pardon after conviction; as if before the „.,_ „ a . 

1 m ' m The Pardoning 

conviction of the criminal there was no legitimate Power in the 
place for pardon. states. 

Clause 2. — He shall have power, by and with the advice and 
consent of the Senate, to make treaties, provided huo thirds of the 
Senators present concur; and he shall nominate, and by a?id with 
the advice and consent of the Senate shall appoint Ambassadors, 
other public Ministers and Consuls, Judges of the Supreme Court, 
and all other officers of the United States whose appointments are not 
herein otherwise provided for, and which shall be established by law : 
but the Congress niay by law vest the appointment of such inferior 
officers as they think proper, in the President alone, in the Courts of 
law, or in the heads of Departments. 

The "advice and consent" of the Senate, both in making 
treaties and in appointments to office, is, in prac- « A dvic 
tice, consent rather than advice. The treaty is and 

prepared and then sent to the Senate for their con- Consent." 
currence. A nomination is made by the President, and the 
Senate acts upon the question of confirmation. 

A treaty is an agreement or contract between two nations. In 
Great Britain the power to make treaties is in the Crown. In a 
republic the people may place it where they choose. T eaties 
The wisdom of giving it to the President and 
Senate will hardly be questioned. To give it to the President 



l68 THE CONSTITUTION. 2. II. 2. 

alone would intrust to him more power than is consistent with 
the nature of our government. It could not well be placed in 
Congress because of the promptness and secrecy often neces- 
sary. By requiring the concurrence of two thirds of the Senate 
with the President the Constitution has provided as ample a 
guaranty as could well be required for the maintenance of the 
rights and honor of the country. 

While the power to make treaties is general and unrestricted, it is not to 

be so construed as to destroy the fundamental laws of the land. "A treaty 

to change the organization of the government, to anni- 
The Treaty . .. . S . . ... ' 

_, ,. .. . hilate its sovereignty, to overturn its republican form, or 

Power limited. t» j > r 

to deprive it of its constitutional powers, would be void; 

because it would destroy what it was designed merely to fulfill, the will 

of the people." 1 

Cases may arise where a given end may be reached either by a treaty or 

by ordinary legislation. Thus Congress authorized the admission of the 

Republic of Texas in either of two modes — by treatv, to be 
Case of Texas. . , , , _ . . . . _, ... , , 

negotiated by the Executive with that Republic; or by the 

acceptance, on the part of Texas, of certain terms specified in the joint 

resolution of the two Houses. "The annexation was made, in fact, by 

the acceptance of the propositions of Congress. So that the treaty was 

made directly with Texas by Congress, and not by the President with the 

advice and consent of two thirds of the members of the Senate, as the 

treaty-making power." 2 

If a treaty made by the President and Senate with a foreign 
power involve the payment of money, can Congress exercise 
any discretion as to the appropriation ? This ques- 
^o'ney ° ^ on came U P during the administration of Presi- 
dent Washington, and was debated with great 
earnestness in the House of Representatives. The treaty was 
one made by Mr. Jay with Great Britain, and in some of its 
features was obnoxious. The House by a large majority passed 
a resolution that whenever a treaty required laws to be passed 



1 Story. I 1508. - Farrar, page 333. 



2. II. 2. THE EXECUTIVE — TREATIES. 1 69 

to carry it into effect, they had a constitutional right to delib- 
erate and determine the propriety or impropriety of passing such 
laws, and to act thereon as the public good should require. 
Shortly after, however, Congress passed a law to carry the 
treaty into effect. 

Says Chancellor Kent, " If a treaty be the law of the land, 
it is as much obligatory upon Congress as upon 
any other branch of the government or upon the ° P Ke° ™ ° 
people at large, so long as it continues in force 
and unrepealed." 1 

It is claimed that whenever territory has been acquired by 
treaty, Congress has been consulted beforehand; that in the 
three great cases of the purchase of Louisiana, of 
Florida, and of California, Presidents Jefferson, territory 
Monroe, and Polk consulted Congress beforehand 
to ascertain its wishes in the matter, thus apparently recognizing 
the authority of the House of Representatives to make or re- 
fuse the necessary appropriations. 

It is probable, however, that the framers of the Constitution did not 
contemplate the purchase of territory as belonging to the treaty-making 
power, and President Jefferson at the time Louisiana was purchased admit- 
ted that the authority to make the purchase was not given to the govern- 
ment in the Constitution. As, prior to the purchase of Alaska, Congress 
has always been consulted whenever it has been proposed to enlarge our 
domain, and as there are grave doubts whether the acquisition of territory 
comes within the province of treaties, it seems desirable that in all such 
cases the consent of Congress should be obtained. 

In framing a treaty the President acts through the Secretary of State, a 

foreign minister, or a plenipotentiary appointed for the purpose. The 

treaty is signed by the representatives of the two nations, 

,,,.,, r ■, ■ Treaty; how 

and then submitted to the respective governments for their Made 

ratification. After the ratifications have been exchanged, 

the President issues his proclamation making the treaty public, "to the 

end that it may be observed with good faith by the United States and 

the citizens thereof." 



1 Vol. I, page 156. 
A. C— 15. 



: _ : 



ihz : JfTTVTIv 



2. ::. :. 



±2 S 



=- 25 — irnsiirrjii: 2 • ~-~ — , 

s. It is called g: 1 g ima Z e e 

:- ::r>ei: 2222.5: :::_:_- lz. 
22-= . :: " 25 =22222 ::e22: :: ::::.- 



"":::: :y 
r : : 2 :z:-= 

: c 222 2 r . 
ZTZ--—Z 

:z zz/zr.z 

T.-.r : 

2222225:225 



Si:::-: i-~ 

: : '2TTi . : : 
: f 222 22 2 2 
2227 '2= : 
': = '. : 2 2 : : 
2222.: ::' ; 

22 = .:..: 



:: 2 :22 n: 



ted by Mr. 

2 ::.. iZ'.z. 



tbe Executive. If an ill a] 

2"ve :':: ~: 22222222:^2;. 222 
2i::j-2:e. :..: 2.2 22 2:'::t: 



: 2 7 5 . 22 22 2 



T22T A22 12552 2 J 75 122=2 2_: I 

.i:=5 ::' ±2 52222:222 7: 22-2, 
tbe President and Senate; but 
:2:f 2: .:::.2:t:: 222.7 17:22 
; ;■ ::: ;: : ;. 222 

Mitmenls. It has not been de- 
r not. "inferior officers"; bat it 

212 222.22 :: 2 =7 -277222 22.25 21 Z. '. 

::-:: z 5 2. : : - - 2 5 : : 2 7 

5 222: .:2 27 22 22.2 '.'. 222.5 IT 22 



:: r i-- .-.:; 



: i l;.:i_.;: }♦": ~. 



2. II. 2. THE EXECUTIVE — REMOVAL FROM OFFICE. 171 

Formerly, the Postmaster-General could appoint and remove all deputy- 
postmasters. This gave him an enormous patronage, which was contin- 
ually increasing. But the Thirty-seventh Congress, at its third session, 
enacted that the Postmaster-General should appoint those deputies only 
whose compensation is less than one thousand dollars a year, all others 
being appointed by the President. 

While the Constitution makes provision for appointment to 
office, it says nothing in regard to removal from office. At the 
time the Constitution was under discussion in the 
States, its friends spoke of the consent of the ^offiU " 
Senate as no less necessary for the removal of an 
officer than for his appointment. 1 But in the First Congress the 
question came up in the House of Representatives, and was 
discussed at great length. In a bill establishing a Department 
of Foreign Affairs — now called the Department of State — it was 
provided that the Secretary might be removed by the President. 
The debate occurred on a motion to strike out this provision. 

It was maintained on the one side that the power to appoint 
and the power to remove must go together; if the President 
could appoint only with the consent of the Senate, 

. , . The Two 

their consent must also be necessary to remove. views. 
On the other side it was held that appointing to 
office and removing therefrom were executive acts. If the 
Constitution had not associated the Senate with the President in 
the matter of appointments, Congress could not have given 
them that power; and as the Constitution had not conferred 
upon the Senate the power to unite with the President in re- 
moval, Congress was not authorized to associate them with the 
President in removing from office. 2 The bill, with the pro- 
vision authorizing the President to remove from office, finally 
passed the House of Representatives by a vote of twenty-nine 



1 " The consent of that body would be necessary to displace as well as to appoint." 
— Federalist, No. 77. 

2 Annals of Congress, I. page 463. 



172 THE CONSTITUTION. 2. II. 2. 

to twenty-two, and the Senate by a majority of two. How 

strong was the opposition to giving such power to the President 

appears from the language of Mr. Sumter, of 

in 1789. South Carolina, who said : ' ' This bill appears, to 

my mind, so subversive of the Constitution, and 

in its consequences so destructive of the liberties of the people, 

that I can not let it pass without expressing my detestation 

of the principle it involves." 1 

''That the final decision of this question in favor of the 

executive power of removal was greatly influenced by the 

t o«^„o„« exalted character of the President then in office, 

Language ' 

of was asserted at the time, and has always been be- 

lieved; yet the doctrine was opposed, as well as 
supported, by the highest talents and patriotism of the country. 
The public, however, acquiesced in the decision; and it con- 
stitutes, perhaps, the most extraordinary case in the history of 
the government of a power conferred by implication on the 
Executive by the assent of a bare majority of Congress, which 
has not been questioned on many other occasions." 2 

For forty years after the adoption of the Constitution there 
were very few removals from office, except as a public necessity 
Early to secure greater efficiency in the discharge of 
Removals official duty. Such, unquestionably, was the ex- 
pectation when the Constitution was formed. Mr. 
Madison, in the debate referred to above, used the following 
language : "I contend that the wanton removal of meritorious 
officers would subject him (the President) to impeachment and 
removal from his own high trust." 3 

But, although for many years men were appointed to office 
for their fitness, a change had taken place before the first half 
century had elapsed. In 1835, during the second term of 
General Jackson's administration, a committee of the Senate, 



1 Annals of Congress, I. page 591. 2 Story, §1543. 

3 Annals of Congress, I. page 497. 



2. II. 2. THE EXECUTIVE REMOVALS. 1 73 

Mr. Calhoun Chairman, appointed to investigate the subject 
of "Executive Patronage," used the following language in 
their report: "It is easy to see that the certain, Removals 
direct, and inevitable tendency of this practice is under 
to convert the entire body of those in office into Jac son * 
corrupt and supple instruments of power, and to raise up a host 
of hungry, greedy, and subservient partisans, ready for every 
service, however base and corrupt. Were a premium offered 
for the best means of extending to the utmost the power of 
patronage; to destroy the love of country and substitute a 
spirit of subserviency and man-worship ; to encourage vice and 
discourage virtue; and, in a word, to prepare for the subver- 
sion of liberty and the establishment of despotism, no scheme 
more perfect could be devised." 1 

Although bills had been introduced into Congress to limit the 
President's power of removal, no law to that effect was passed 
until 1866. In July of that year it was enacted , „ 

J . J J . Act of 1866. 

that • ' No officer in the military or naval service 
shall, in time of peace, be dismissed from service except upon 
and in pursuance of the sentence of a court martial to that 
effect, or in commutation thereof." This was under the admin- 
istration of President Andrew Johnson. In March, 1867, an 
"Act regulating the tenure of civil offices" was passed, which 
provided that the President might suspend an officer during a 
recess of the Senate, reporting the same with the Act of l86y on 
reasons for it to the Senate within twenty days Tenure of 
after their assembling; if the Senate should con- 
cur in the removal, another person might be appointed. But 
if the Senate should not concur, the suspended officer was to 
resume his duties. This bill was vetoed by President Johnson, 
but passed over his veto by a large majority in each House. It 
was chiefly for violating the provisions of this act in removing 
Secretary Stanton after the Senate had refused to concur in his 



1 Senate Doc, 2d. Sess., 23d Cong., vol. 3, No. 109. 



174 THE CONSTITUTION.. 2. II. 2. 

suspension, that the House of Representatives brought articles 
of impeachment against the President. 

This act was modified by act of April 5th, 1 869, repealing the clause 

requiring the President to report to the Senate the reasons for suspending 

an officer, and the clause providing: that the suspended 
Act of 1869. v ~* F . 

omcer may resume his duties 11 the reasons for suspension 

are not satisfactory to the Senate. Practically, the President might remove 

an officer by nominating one to succeed him; and should the Senate fail 

to confirm the nomination the President could name another person. 

Thus, after more than three quarters of a century, the legis- 
lative construction given to the Constitution in 1789 was 
reversed in 1867. In each case the action of Congress was 
doubtless largely influenced by their estimate of the character of 
the Executive. The question has never yet been the subject of 
judicial construction. The repeal in 1887 of the act of 1867 
places this subject where it was left in 1789. 

The frequent changes in office, and the appointment of men 
often sadly deficient in intellectual and moral qualifications, form 
one of the sources of official corruption. The subject of "Civil 
Service Reform " has been largely discussed within the last few 
years, and various plans have been suggested to remedy existing 
evils. Three things have been affirmed to be requisite in order 
to bring about a reform : a competitive examination of all candi- 
dates for subordinate offices ; promotion to higher grades on the 
principle of service and desert; and a tenure of office during 
good behavior, or for a term of years. 

In 1883 was passed "An Act to regulate and improve the 
civil service of the United States." Something had been done 

_. _. ., in i8s^ and 18^, and President Grant introduced 

The Civil JyJ JJJ 

Service Act competitive examination, but the appropriations 
of 1883. were soon discontinued. The law of 1883, known 
as the Pendleton bill, provides for competitive examination in 
the Department service at Washington, and in Custom Houses 
and Post Offices having fifty clerks; embracing more than 14,000 
persons. None are included whose appointment needs the con- 



2. II. 3- THE EXECUTIVE — FILLING VACANCIES. 1 75 

firmation of the Senate. A vacancy is filled from the four 
highest of those who have passed the examination. Each State 
and Territory is entitled to its proportion in filling vacancies, 
Each appointee serves a probation of six months before his ap- 
pointment is made absolute. 

Clause 3. — The President shall have power to fill up all vacan- 
cies that may happen during the recess of the Senate, by gi'anting 
commissions which shall expire at the end of their next session. 

When an appointment has been made in the usual mode, that 
is, the President having nominated and the Senate having con- 
firmed, the commission is not made out till the 

. Commissions. 

Senate have signified their concurrence. If the 
person nominated by the President is rejected by the Senate, of 
course no commission is issued. But when a vacancy is filled 
in the recess of the Senate, the President grants a commission, 
which continues in force only to the end of their next session. 
If the President nominates to the Senate one whom he had thus 
appointed and commissioned, and the Senate confirms the nom- 
ination, a new commission is issued, and, if a bond had been 
given under the first appointment, a new one is required. 

Some have held that the first appointment to a new office can 
not be made during the recess of the Senate, as strictly, they 
say, no vacancy has happened in that case. Presi- w shin , 
dent Washington did not so interpret the words. view of a 
In May, 1796, the office of Surveyor General was "Vacancy."* 
created by law. In October, during the recess of the Senate, 
the President appointed Rufus Putnam to the office, the lan- 
guage of the commission being, "Whereas, a vacancy exists 
in the office of Surveyor General," etc. When the Senate con- 
vened he nominated General Putnam and the Senate con- 
firmed him. 

Suppose a vacancy had been filled by the President in the 
recess of the Senate, and the officer thus appointed should be 



:-:' 



thi ::y?rr~~::y. 



2. :::. 



nominated to tie Seca: 7 ■ ■ - . . 7 . : : 7 : - - : : - : 

could the Reside::: arte: ±t 1 : : _::.::::.t:.t : :' 77.7 .7 :.::t :e- 
appoint the same person? Would this be a "vacancy" in die 

meaning of the Constitution? If the Senate have rejected an 
officer, the President should not appoint " him to the same office. 
The consen: : :' '.:.-. ^-:: -. :: :~ :ir_Trr_er.: emire:: 

■ 7 \ : :'..::::_:. : ::. : :. : : \: : .: ; :: _ : v. 7:.: : : :.:t:::. ; '.: '7 = :::.::. :t 
::\7 ^:t-:i7": i.::.t in.; Tier 77.777 :f ~: :;::r:_~ :?;" :: ::~r^.: 



I: it 

i. : :: :• 

Adams. 

._ . . . ~ . .„ z z 

I - -' 



land BDiainaiec 

1 e ction ' 



- .:._ . ; 7 :.v: ".:..' ".;. 
r : . : ■•;. jvj ;\- .-_;.-.' 
--•.; .;-' ^ j-'.-:. -';"..' 

; ..' : 7-r.V ;_;•::' .'.:-.' . 
mission al~. ~ . 



:.: ■-..-.-. .'■: z. z i: -._:.::. :i :"r_t 7:f-.:t:.: ~JL:.st 
it li" : i.:t t:.r:.:r: =--_.-: -i>t ±t it :-: .:~ti: 
:t-i _r_ie: ::.t :ir:_:?:r:r.:- ::' ?rer.i=r: f I_ 
::r ~iit 1 r_:~.r.i:.:r. ~"-.;:i --.:- rtri.t-i uzi 

' ' - --7 : ~ r_ ~ . . 1 1 ' ".: " i;i.ri T z~ zzz. zz z<- ~z, t z.~„. 
- .. t ~ t :.'.;: t : tt- : :e : : : : l t 

•;. - :.. r_.. ::.::. ::' v:.t r.:r_\t :.t:^:i Tit ^r_i:t 
:. ". :. 7 : : -7 ::. : 1 : . :: . t : ~'.::";: zz^zzzzz :-.::: t: 

.-_:':t: :;.t 1: : . rz. :_ 7 :. : : :" lit S=m:t ::.t 7:t::.:tz: 
Et would bave been better if tbe Smate fad acted 

_ _. . :. 7 i- ztzt-Z.~> :::.:: t : rrer.itr.: _.t~t- 
: : :.: _ ::: :.: -z ; y n _ t: :t : ::. 1 lit ~.t:.i:t :t t : :• 



It is customary for the '. 
;:::j: st 
which contain! 

heads of depai 
operations of the governme] 



r Tz: . ZzZ.~. i 

I '. i : 1 1 1 - 



"".c::.:! :.: _:: 
: :.;:. 7 : -. : ■ : ~5 :: : 
genera. :. : : : _:.: 
~ . ir. £ _i 1 .7. f _ _■ i' 7 



2. III. THE EXECUTIVE DUTIES. 1 77 

as he may deem expedient. Accompanying the message are the 
full reports of the various departments, and documents con- 
taining detailed information as to every branch of the govern- 
ment. The "Message and Documents" and "Executive 
Documents" fill annually a number of octavo volumes. The 
President also sends special messages from time to time, recom- 
mending such measures of legislation as he thinks the interests 
of the country require, or containing information requested by 
Congress. 

President Washington delivered his first message to both 
Houses assembled in the Senate Chamber. He continued to 
deliver his messages in person at the opening of 
each session of Congress, during the eight years of Delivered 
his administration, and his example was followed 
by Mr. Adams. Each House appointed a committee to prepare 
a reply, which, when adopted by the House, was presented to 
the President. This was in accordance with the custom of 
England and other constitutional governments. Mr. Jefferson, 
however, preferred to send his message, to be read to each 
House by its clerk. There was no expectation of an answer. 
This custom has been followed to the present time. 

The authority given to the President to convene Congress has been used 

on a number of occasions. President Adams called an extraordinary 

session for May 15th, 1797, on account of the difficulties 

with France; President Jefferson, October 17th, 1803, be- Congress Con- 

vened by the 
cause of the purchase of Louisiana and difficulties with President 

Spain. President Madison, May 22d, 1809, and again 

May 24th, 1813, both because of difficulties with England; President Van 

Buren, September 4th, 1837, to consider the financial condition of the 

country; President Harrison, May 31st, 1841, 1 for the same purpose; 

President Pierce, August 21st, 1856, because of the Kansas troubles; 

President Lincoln, July 4th, 1861, on account of the rebellion in the 

south; President Hayes, October 15th, 1877, for want of an appropriation 

for the Army, and again March 18th, 1879, for the failure to pass the 

appropriation bills. 



1 The proclamation was issued March 17th, and President Harrison died April 4th. 



:-: t:-:i :;: •:::;::: 2. 







The House of Represen:i~ ves has never been convened 
alone, but the Senate has often been, for exec dwe : e i 

No case has yet arisen of disagreement between the two 
Houses in regard to the time of adjournment, and there: :t the 
I :- ident has never had occasion to use the contingent power of 
adjourning them. In England the sovereign may at any time 
prorogue or dissolve Parliament. 

The President is to receive ambassadors and other put 
ministers. Diplomatic intercourse with other nations is carriri 
on through the Executive Department. Instruc- 
-- Sots tions to our foreign ministers, though bearing the 

.nature of the Secretar; :: State, are always in 
the name and by the order of the Presideiit To recr ;■■-. 
ambassador or other public minister is to recognize the country 
from which he comes as belonging to the commonwealth of 
nations. 1 The Southern Confederacy made great efforts to se- 
cure such recognition from Great Britain and France during 
war of the rebellion. 

The power to receive involves the power to refuse to receive, or to ic 
and dismiss. This may be done for reasons pertaining to the mir. ista 
himself, as in the case of M. Genet, the French ninisrer whom President 
Washington requested France to recall in :~:; jtob account :: tbe re- 
lations of the two governments. : 

The President " shall take care that the laws be : 
exe :nted, and shall commission all officers of the United Stz.- - 

To see that the laws are executed is the rreat duty 
of the President He is not to make the laws, :: 
repeal them, save as the Constitution gives 
qualified negative in their enactment, but to take care that die 
; are duly enforced. When the meaning of a law is judi- 
cially called in question, it is not the province of the President 

1 Cizzitsi : : _. i ;::::.: re- erse zr.z z:: :z ::' :z~ ? rti'.ztz.:. 

- Z-z'zt: zzl-isztr- ;it; :a:. rtzzl.^z z: z'zt ztztz ::' : _r r:-renztr: : 



2. IV. IMPEACHMENTS. 1 79 

to decide as to the true meaning and intent of the statute ; this 
belongs to the Courts. He may differ from the Supreme Court 
as to the interpretation of a law or a clause of the Constitution, 
or he may think a statute unwise or inexpedient; still, whatever 
has been enacted in accordance with the forms prescribed by 
the Constitution must be executed in good faith by the Presi- 
dent. For this purpose he is clothed with great power; the 
army and navy are under his orders. Either directly or indi- 
rectly all executive offices are filled by men of his selection. It 
is his duty, therefore, to see that none are appointed to office 
but those who are honest and capable. 

Section 4. — The President, Vice-president, and all civil officers 
of the United States shall be removed from office on impeachment 
for, and conviction of, treason, bribery, or other high crimes and 
misdemeanors. 

The other instances in which impeachments are alluded to in the Con- 
stitution are these : The House of Representatives shall have the sole 

power of impeachment ; The Senate shall have the sole 

.... . „ . . . , Impeachment, 

power to try impeachments; When the President ot the 

United States is tried, the Chief Justice shall preside ; In trials for im- 
peachments, the Senate shall be on oath or affirmation, and the concur- 
rence of two thirds shall be necessary for conviction ; Judgment shall not 
extend further than to removal from office and disqualification to hold and 
enjoy an office of honor, trust, or profit under the United States ; The 
party convicted may also be tried and punished according to law ; The 
President has power to grant reprieves and pardons for offenses against the 
United States, except in cases of impeachment ; The trial of all crimes, 
except in cases of impeachment, shall be by jury. 

While it is clear that the House of Representatives only can 
prefer articles of impeachment and the Senate only can try im- 
peachments, it is not clear who may be impeached. 
The present section prescribes a minimum punish- i m p e ^hed * 
ment for all "civil officers" on conviction, but the 
Constitution nowhere defines "civil officers," nor does it say 
that others are not liable to impeachment. The term civil is 



tee ::>?t:t7t::. : 

here supposed to he nsed in distinction from im&tmy and maaai. 

Some understand that member: : : T : : _ - ■ - - : : ; . . : T : 
under the de; _-.. dor. ::vil officers. : Bctan j, Artirflp H^ 

p: - - : t tat the President ^ shall cdtizliss: :c ill ± t - er; 
the United State As membt: f : : 1 ; : _\- ess are nwt cammis- 
sioned t y tr. t 7 : r _ : : f : : :: is n_frrred that they acne not ^fflfik-.r : i 
:z tr.e senst :: the 1 DnstitntiEm, 

mpeachment hr bs Eg 'illiant E! i V : e: 

Senator from Tennesset .: " " T'r r ;_: " atte: ■_: r 

T I I 7 E . 

Senator ^ . ( VQ:te ^ „. f ..____ _ : _ 

Blount 

-" - " ' ; .: ; : 

tchment. Artie' t mpiLiiiliiiie: 

and tit fri l h a— nnoned Bi : 

: ember fol ; ~ime tht :)rmed : : e. 

and counsel for the defencbsEt appeared and fiie: ; 

; not impeach one wfk ■ : ot then c . who -was "not am 

officer of the Ih e • . - n e v tien the offenses cha- ; e: 
The question of jmukiflkllaBHi -was them argued, and. the canri deriHlea^* 

een to eleven, that they had no jgrTScrictian, and so ibc esse grafts 
The decision is supposed tofawe iaeen on tht ; l: ; 
; -.7- te United States. 

It appears that all "civil officers" may be impeached for 
rngh crimes and misdemeanors," and, if convicted, 
be removed from office, and may be disqua lifi ed fo: :.:.- 
tmder the govern rrtent. It does not appear that t 
be impeached for other and lesser -offense* md pi 
same manner, ox other- . c ■ 3t exceeding that. 

"It was the opinion of the trainers and early administrates «nf an 
ehs ■ -i' -hat all the civil office were inri: • v. : - v. . i-ti 

sances in offhf i : an m ting to high zrin e: :,: rr : en - 

manner : e : . t t ; : ; rerrj : T "L.l fron ant i 
tion for, ofn::t : Mr. Mat- 
office has already boa : noted : "The "wanton reniD"-- 



A.nti£.. —ess, 5th . : r 



2. IV. IMPEACHMENT. l8l 

officers would subject him (the President) to impeachment and removal 
from his high trust." 

Besides the case of Senator Blount, there have been six in- 
stances of impeachment. The first was that of Judge John 
Pickering, of the District Court of New Hamp- 
shire, in March, 180*. The second was that of T ase ^ ° 

' ' ° Impeachment. 

Judge Samuel Chase, of the Supreme Court, in 
March, 1804. James H. Peck, District Judge of Missouri, 
was impeached in April, 1830; West H. Humphries, District 
Judge of Tennessee, in May, 1862; Andrew Johnson, Presi- 
dent of the United States, in February, 1868; and William W. 
Belknap, Secretary of War, in March, 1876. 

The charge against Senator Blount was an attempt to carry into effect 
a hostde expedition in favor of the English against the Spanish possessions 
in Florida and Louisiana, and to enlist some of the Indian tribes in 
the same. 

Judge Pickering was charged with great irregularities on the bench, as 

well as gross intemperance. He was undoubtedly insane 

at the time he was impeached, and did not appear in person J ud g e 

. _, _ . . ,., . , n Pickering, 

or by counsel. The decision, on March 12th, 1804, was 

that he was guilty of the charges, by vote of nineteen to seven. By a 
vote of twenty to six he was removed from office. 

Judge Chase was charged with improper, conduct on the bench, as mani- 
festing partiality, injustice, and oppression. There were eight articles of 

impeachment, on two of which eighteen Senators voted 

.,,,,. ., ,, ■> i • Judge Chase. 

"guilty, and sixteen "not guilty ; on the other six 

articles a majority voted "not guilty." He was, therefore, acquitted on 
every article. John Randolph was the leading manager on the part of the 
House to conduct the case. 

Judge Peck was impeached for an abuse of his judicial power in pun- 
ishing Mr. L. E. Lawless, an attorney, for contempt. The offense of 

Mr. L. was the publishing in a newspaper a criticism on 

Judge Peck, 
a decision by Judge Peck, and he was punished by im- 
prisonment for twenty-four hours, and suspension from the bar for 
eighteen months. The decision was in favor of Judge Peck, twenty-one 
Senators voting "guilty," and twenty-two "not guilty." Mr. James 
Buchanan was the Chairman of the managers. 



tez raassrrrrncEK. 

:■-::: 
: 

■ 

H. 7 "_? ~ r . r "_ Te~ - ~ ~. ~T . r _1_ - " '.._.." r ". 

fr:~ ; i:r_- zz.~ ~ - 1 : : - t~ _~_ :r ~: fr. u: . . f. ::.t Yt__ r. r-.:.:e- 

: : .-_ I :.. : - - z ■ -.-.- 

- . ■ - - 

. ' : - : 7 -T- _ :1 . 

-:.--. : • 

- . :ri — _':.:_"-" : - : - : : :: ;;:_:: l: ~r.r 5 ?: ::.; :. li 
J 7 . : -.I- ■.: - ::.::::" vb: :.; i ::-_i:: :__= ; 7 .;t t "2= :f- 

~ . " rl 1' lit ?Tr: It!.. 7r_Trr „"\- ..";:"„::: ZZiz ?I _-7 DI 

7 t -7 ±: .-.:-. r5 :_::r: :rr:..:;i: :■:' :-".: r: ::.-■ .r: i: Tne 11- 

t re:: :7_: :: .: .r ^ncTr Mirir _-_:. :.l i :: r ttil_ -i:ri 

M:- ; -.-.;. 7: ._- _ -i r : 7 : ~i r : ;;■_:_.— :.i i i_:: .r -~: 

r h ain>Dint- 

- e: - t : r _1. : :~_: t 

:.. : r_ .: j. i :.:.: _:.t tt._. t:.r_ _-_-_r~--~ :.-; 

f - - e : 

irji: :7e~ :.: : uri_="_ .: :. --- -_-__. r .. r. n ;.: a::r.;:u.. .: -js~~ — r~ er 
" :.:_r ~-i— ~ -i- "::":': : ~v__ ." ~7 1 - ~ \t- ~~±~- : - .it " 

_:_7 -Tit : . - :r rull: :" ±.t - en i^n: ;.: : ;.■ :; ;r^r _-..-_. :;.;l :: u.r 

el: -jl —. 



i rction I- — 27 

/ - ;-. . -.- -- - .-.''.. :. r --. -_;.: • j».j" :s:jr.'.:/. _~. _ 7j7v. 



3. I. THE JUDICIARY. 1 83 

both of the Supreme and inferior Courts, shall hold their offices 
during good behavior, and shall, at stated times, receive for their 
services a compensation which shall not be diminished during their 
co?itinuance in office. 

The Judiciary is the third of the three great departments of 
the general government. The Constitution itself provides for 
one Supreme Court, but leaves to Congress to determine how- 
many inferior courts should be established. The organization 
of the Supreme Court is also left to Congress. 

At the first session of Congress, in 1789, an act to organize 
the Judiciary was passed. Two inferior Courts were estab- 
lished, called the Circuit Court and the District 

Classes Ol 

Court. While there were thus three distinct courts. 
Courts, there were but two kinds of Judges — Su- 
preme and District, 1 the Circuit Court being held by a Supreme 
Judge and a District Judge. 

The country was divided into thirteen districts, in each of which a 
Judge was to be appointed, who was to hold a Court four times in each 
year. These districts were grouped into three circuits, in each of which 
a Circuit Court was to be held twice a year. The Supreme Court con- 
sisted of a Chief Justice and five Associate Justices. In 1807 the number 
of Associates was increased to six; in 1837 to eight; and in 1803 to 
nine. This Court was to hold two sessions each year at the seat of gov- 
ernment. 

As the population of the country increased, and new States were ad- 
mitted into the Union, the number of inferior Courts was increased, till, 
in 1863, there were ten Circuits and about forty Districts. 
By the act of March 3d, 1863, the Supreme Court was i u dees 

composed of a Chief Justice and nine Associate Justices, 
the whole equal to the number of Circuits. But the act of July 23d, 
1866, provided that no vacancy should be filled till the number of Asso- 
ciate Justices was reduced to six. 



1 In February, 1801, an act was passed providing for the appointment of sixteen 
Circuit Judges, but the act was in force but a single year, having been repealed in 
March, 1802. 



184 THE CONSTTTOTIOX. 3. I. 

From 1793 tifl 1869 the Circuit Court was composed of one 
Judge of the Supreme Court and the District Judge. In 1869 
an act of Congress was passed creating Circuit Judges, one for 
each of the nine Circuits. The same act made the Supreme 
Court to consist of a Chief Justice and eight Associate Justices, 
corresponding to the number of Circuits. There are now 
(1888) nftynseven Districts. 

We have seen that in both the legislative and the executive 
departments the term of office is limited : the Representatives 
office Dming ^u^ elected for two years, the Senators for six, 
i:od and the President for four. But in the judicial 
department the office is to be held during good be- 
havior. This is virtually for life, for a Judge of the United 
States can be removed from office only by impeachment. As 
the Judges are not elected by the people, but appointed by the 
President and Senate, they would be virtually dependent on the 
other departments of die government unless their term of 
office was during good behavior. If the President, or the 
President and Senate, could remove them at pleasure or if 
they were appointed, for a limited term the Judges could not be 
truly independent. It was the purpose of the Constitution to 
make this department co-ordinate with the others, and with no 
more dependence upon diem than they should have upon it. 
The independence of the Judiciary is quite as important in a 
republic as in a monarchy. 

All the plans submitted to the Convention contained this provision, 

that the Judges should hold their offices during good behavior. While 

Success of Messrs. Randolph, Pinckney, Patterson, and Hamilton 

'-= l-±--zl iifertf. 15 :: ~ir.v ;:_±: ::_:^r- ~.':.f-~ i~:r±i t~~-t\~ z- :: 
--•---" :le :e™ :;' :£::= :: :"-= f_:rt ; . 1~zz zzi:v.:z'. ~::l-±i^ 

of the system has been such as to commend it to the people. The Judges, 
::.::: ~~~= :r. i-7t~ tn: : :' z'zt ':.-_: ierme*:- :: ...t :;T:-~t::. z~-i 
removed from, the fluctuations of popular opinion, have discharged the 
duties of their high trust with finmifss and dignity. In some iwgtawrre 
men have been appointed to the bench who had previously been intense 
political partisans, but with scarcely an exception they have laid aside 



3. I. COURT OF CLAIMS. 185 

party feeling when entering upon office, and as Judges have devoted 
themselves faithfully and conscientiously to their appropriate duties of 
interpreting and applying the laws and the Constitution. 

In 1855 a Court of Claims was establisned, which hears 
claims against the government founded on a law of Congress, 
on any regulation of an executive department, or 
on any contract, express or implied, with the gov- claims 
ernment of the United States. Before the organi- 
zation of this Court, those who had claims against the govern- 
ment which were not allowed by the departments had no 
remedy but to petition Congress. The Court reports its pro- 
ceedings to Congress, and when its decision is favorable to a 
claimant it prepares a bill for carrying the decision into effect. 
This bill comes before Congress for its action like other bills. 
The Court of Claims is thus a kind of permanent commission 
on claims. 

This Court consists of five Judges, of whom one is Chief Justice, who 
hold their offices during good behavior. Their annual session commences 
at the same time with that of the Supreme Court, on the first Monday of 
December. 

There is also a Supreme Court of the District of Columbia, consisting 
of a Chief Justice and four Associates, who hold their 
offices during good behavior. Any one of these Justices Court of the 

may hold a District Court for the District of Columbia, n , .. 

J ' Columbia. 

with the same powers and jurisdiction as are exercised by 
the other District Courts of the United States. 

Supreme and District Courts are established in the Terri- 
tories, but they are not considered as an integral part of the 
Judiciary of the United States. They are estab- 
lished by Congress in virtue of the general sov- Territorial 

... ... , Courts. 

ereignty which exists m the general government 

over the Territories. The Judges are usually appointed for 

four years, unless sooner removed. 

The general Judicial system of the United States consists, 
then, of three grades of Courts — the Supreme, the Circuit, and 

A.C— 16. 



1 86 THE CONSTITUTION. 3. I. 

the District. There are also three grades of Judges, corre- 
sponding to the Courts. The Supreme Court is held by the 
Supreme Judges, and the District Court by the 

Three Grades ... . . 

of judges. Judge for the District. But the Circuit Court 
may be held by a Supreme Judge, the Circuit 
Judge, or the District Judge, or by any two of them. The 
Court for the District of Columbia is special for that locality, 
and the Court of Claims is special in regard to the cases 
brought before it. 

The compensation of the Judges of the United States Courts 

shall not be diminished during their continuance in office. The 

propriety of this provision is obvious. If Con- 

Compensation. .... . 

gress could reduce their salaries at pleasure, it 
would place them at the mercy of the legislative department, 
and thus destroy their independence. 

When the Courts were organized in 1789, the salary of the Chief Jus- 
tice of the Supreme Court was placed at $4,000, and those of the Asso- 
ciate Justices at $3,500 each. The District Judges received from $1,000 
to $1,800. The salaries have been raised from time to time ; since March, 
1873, tne y have been as follows: the Chief Justice, $10,500-, the Associ- 
ates, $10,000; the Circuit Judges, $6,000, and the District Judges from 
$3,500 to $5,000. 

By act of April 10th, 1869, it was provided that any Judge 

of any Court of the United States, having held his commission 

_, . . ten years, and having attained the age of seventy 

Provision J o a J 

for years, might resign his office and receive the same 

Retirement. sa i arv during life which was payable to him at the 
time of his resignation. 

The officers of the United States Courts are Attorneys, 

Marshals, Reporters, and Clerks. The Attorney-General is 

charged with the duty of conducting suits in the 

Attorney- Supreme Court in which the United States shall be 

General. 

concerned. He is also to give his advice and 
opinion upon questions of law when required by the President, 



3. II. I. THE JUDICIARY — CASES. 1 87 

or requested by the heads of any of the departments touching 
any matters that may concern their departments. He has a 
seat in the Cabinet, and is at the head of the Department of 
Justice established in 1870. 

The Supreme Court has a Reporter whose duty it is to report all the 
cases brought before that Court. These reports are pub- 
lished, and now fill many volumes. 1 In each judicial dis- Courts 
trict there is a District Attorney, who attends to all cases 
in the District and Circuit Courts in which the United States is a party. 
Each district has also a Marshal, who is the executive officer of the 
Court, performing the same general duties in the United States Courts as 
the Sheriff in the State Courts. He carries out the order or judgment of 
the Court, and executes its process. The Clerk keeps a record of all the 
proceedings, giving a history of each case, with all the orders, decrees, 
judgments, etc., of the Court. He keeps the seal of the Court, and has 
charge of any moneys paid. The Attorney, Marshal, and Clerk of the 
District Court are also officers of the Circuit Court. The Attorney and 
Marshal are appointed by the President and Senate, but each Court ap- 
points its own Clerk. The Supreme Court appoints also its own Marshal 
and Reporter. 

Sec. 2, Clause 1. — The judicial power shall extend to all cases 
in law and equity arising under this Constitution, the laws of the 
Utiited States, and treaties made, or which shall be made, under 
their authority ; to all cases affecting ambassadors, other public min- 
isters, and consuls ; to all cases of admiralty and maritime jurisdic- 
tion ; to controversies to which the United States shall be a pai'ty ; 
to controversies between two or more States ; between a State and 
citizens of another State; between citizens of diffc?'ent States; be- 
tween citizens of the same Slate, claiming lands under grants of 



1 The Reporters have been as follows: 

Alexander J. Dallas, 1789 to 1800. Jeremiah S. Black, 1861 to 1862. 

William Cranch, 1801 to 1815. John W. Wallace, 1863 to 1875. 

Henry Wheaton, 1816 to 1S27. Wm. T. Otto, 1875 to 1883. 

Richard Peters, Jr., 1828 to 1842. J. Bancroft Davis, 18S3 to 

Benj. C. Howard, 1843 to 1860. 

A reference to 5 Wheaton, 317, means the 5th Vol., 317th page of Wheaton's 
Reports. 



: ■ I :>:: ::.:::.::: 3. n. i. 



_-' - ■. ■ ..- Ezz: :-.£ ;r:z:z: 2 z:jz. : - :'.<: :.:.:<-.: z.zzy 
;:■:.-■■ Z:z.::: :zzrz. .-- zzy zz . 

The judicial power frrtpnds to ail cases , etc. The Court has 

no power to act except when cases are brought before it. 
....... .--'-. ::--: .:. '. : '" : . :. : r : "_: ~" ir t : '_. 

Pororiim. and rriminal^ involving controverted rights be- 

7-- 771 : ir?" i:. : :•-""■ ir. 1 :: : :::.::: .:. Itril fir::. 

of judicial proceedings.' 7 a Until a case has been regularly 

brought before the Court, the Judges have no power in regard 

.^formation to Congress 
-.:.:.: :. ;::_:■:•:-:: Li~ is _z: :r_5r::_r. :r_i.. 7:: i:<t: z 7z.:7z :: 
them to advise the President that a law already enacted is in 
conflict wiith the Constitution. Their power is Judicial merely. 



">■' :.tZ- - ?"."..: .: : : rr_~ tr_ :t-i ::: ::t ::r_st ::- i't :': :t '.:.:". :: ;:- ne:r 
to interpret the law involved, and to give tibe meaning of any past of the 
OwwAiittaBtMi which may have a. hearing mpon the aaatter aft ia&iae. But the 
Cmnt cam mot go beyond Ihe case which is before fhcaa and give their 

-\t~ - :.:- :: -.<:.z:- z:: :z~: . t : 7: .t f- :re- i: :. ". '. zzzi.i ::.t Lz." :r.t" 
.:-.-:; rt: i:; ::_: .;• :: iz. i z..- :r_~; L: ::^se- :_:t rtr-l-r.; :r:v.-"r.: :>t:':rt 
.it . . -:: 

7:.: ;:i::::. ;•:— t: ts.tni- :: ::isf= ::. .-'.w. - I: :s :r.r 

T.'t : _„i: : : : 1 7 :: :. . : ir: :: Z _::■■ :; rtLitvt :.±:.zz: 

what are termed hard bargains. These are con- 

£.-.,_ tracts in which, though there may have been 

:.: zzzz. :';: _ i :: i-z.-.z. r_if_::7i_: :: ::_v:..:iate 
them in a court of law, yet there may have been some undue 

zzz.zi " . : " :;.t :t : : mis- 

i-.T7iz.ti ::' ::.7 ::' :r.t zzzzzi ~\v. ::. :. I:_r: ::' ~E.zz.7y ~zz.i 
zzz. ::.tri:t _:. : .i". i:.:-- ~nrrt firtir'rr: ~trt ::::::::: 
.7 z.Z-tT E.it z —izii i>± : zzz: -z'z iz :r.t feifn. yiiiczzz.t- 
:: 1: ;_:T. i7 ~:ii:u: :.r_ 7 ".:::.:. 7 :. : ~"t_. -f :. .:::.. jurisdic- 
* In some of die Slates there are separate Courts for 



• 1 :•:.- pi_rt ^:<: ' J e: t .-:...: : V; :C 



3. II. I. THE JUDICIARY — JURISDICTION. 189 

cases of equity, called Courts of Equity or Courts of Chancery. 
In other States, the same Court has jurisdiction both in law and 
equity; this is the case, as we have seen, in the United States 
Courts. 

The power extends to cases arising under the Constitution , the 
laws of the United States, and treaties made under cases 
their authority. The Constitution confers certain Under the 
powers, grants certain privileges, and secures to 
the citizen certain rights. If a citizen should be injured in 
regard to any of these, he could seek redress in a United 
States Court. If a law of the United States is violated, the 
offender must be tried before a National, not before a State 
Court. Robbery of the mail, evasion of the revenue laws, 
counterfeiting the coin of the country, would be instances of 
this. Any disregard of the stipulations of a treaty, whether by 
an individual, a corporation, or a State, would lead to a case 
arising under the treaties made by the authority of the United 
States, which must be tried before a National Court. 

The propriety of referring to the Courts of the United States the 
various cases enumerated in this clause can not be questioned. "The 
judicial power," says Chief Justice Jay, "extends to all cases affecting 
ambassadors, other public ministers, and consuls; because, as these offi- 
cers are of foreign nations, whom this nation is bound to protect and 
treat according to the laws of nations, cases affecting them ought to be 
cognizable only by national authority : 

"To all cases of admiralty and maritime jurisdiction; because, as the 
seas are the joint property of nations, whose rights and privileges relative 
thereto are regulated by the laws of nations and treaties, such cases 
necessarily belong to national jurisdiction: 

"To controversies to which the United States shall be a party; because, 
in cases in which the whole people are interested, it would not be equal 
or wise to let any one State decide and measure out the justice due to 
others : 

"To controversies between two or more States; because domestic tran- 
quillity requires that the contentions of States should be peacefully termi- 
nated by a common judicatory, and because, in a free country, justice 
ought not to depend on the will of either of the litigants : 



I90 THE CONSTITUTION. 3. II. I. 

"To controversies between a State and citizens of another State; be- 
cause, in case a State — that is, all the citizens of it — has demands against 
some citizens of another State, it is better that she should prosecute their 
demands in a National Court than in a Court of the State to which those 
citizens belong, the danger of irritation and criminations arising from 
apprehensions and suspicions of partiality being thereby obviated : 

"To controversies between citizens of the same State claiming lands 
under grants of different States ; because, as the rights of the two States 
to grant the land are drawn into question, neither of the two States 
ought to decide the controversy : 

"To controversies between a State, or the citizens thereof, and foreign 
States, citizens, or subjects; because, as every nation is responsible for 
the conduct of its citizens toward other nations, all questions touching the 
justice due to foreign nations or people ought to be ascertained by and 
depend on national authority." x 

The judicial power of the United States is thus made to ex- 
tend to all cases involving national questions. The Supreme 
Court is to construe the laws and Constitution of 
Nationa ^ United States. The crowning defect of the 

Questions. © 

old Confederation was that there was no national 
judiciary. The United States had treaties with other nations, 
whose import, like that of other laws, must be ascertained by 
judicial determinations. 

"To produce uniformity in these determinations, they ought to be sub- 
mitted in the last resort to one Supreme tribunal. And this tribunal ought 
to be instituted under the same authority which forms the treaties them- 
selves. If there is in each State a court of final jurisdiction, there may be 
as many different final determinations on the same point as there are courts. 
To avoid the confusion which would unavoidably result from the contra- 
dictory decisions of a number of independent judicatories, all nations 
have found it necessary to establish one tribunal paramount to the rest, 
possessing a general superintendence, and authorized to settle and declare 
in the last resort a uniform rule of civil justice." 2 "Thirteen indepen- 
dent courts of final jurisdiction over the same causes arising upon the same 
laws, is a hydra in government, from which nothing but contradiction and 
confusion can proceed." 3 



1 2 Dallas, 419, 475. 2 Federalist, No. 22. 3 Ibid, No. 80. 



3. II. I. THE JUDICIARY — JURISDICTION. 191 

The good results anticipated from the judicial system of the 
United States have been, to a large extent, realized. "The act 
of September, 1789, providing for the organization E 
of the courts, has stood the test of experience of the 

since that time with very little alteration or im- System, 
provement; and this fact is no small evidence of the wisdom of 
the plan, and of its adaptation to the interest and convenience 
of the country. The act was the work of much profound re- 
flection and of great legal knowledge; and the system then 
formed and reduced to practice has been so successful and so 
beneficial in its operation that the administration of justice in 
the federal courts has been constantly rising in influence and 
reputation." 1 The Chairman of the Committee that reported 
the bill was Oliver Ellsworth, of Connecticut, who subsequently 
held the office of Chief Justice of the Supreme Court. 

The Constitution, as it originally stood, allowed suits to be 
brought against a State by citizens of another State, or by citi- 
zens or subjects of a foreign State. This caused 
dissatisfaction on the part of the States, as they . ev . en 

r ' J Amendment. 

were unwilling to be arraigned before the United 
States Courts on suits brought by private persons. For this 
reason an Amendment to the Constitution was proposed by 
Congress March 5th, 1794: 

The judicial power of the United States shall not be construed to 
extend to any suit in law or equity, commenced or prosecuted against 
one of the United States by citizens of another State, or by citizens or 
subjects of any foreign State. 

This was ratified by the legislatures of three fourths of the 
States, and became a part of the Constitution, as announced by 
the President, January 8th, 1798. It is the Eleventh Amend- 
ment. While it relieves so far the dignity of the States, it 
weakens the power of the national judiciary to do justice to the 



1 Kent I, page 305. 



::: the constitution". 3. n. 2. 

citizen, which is one of lie ends for which the Constitution 

7 ~:>rd Sfiafcj, in this clause (Section 2, Clause 1,) is inter- 
preted by the Courts as not including the Territories or the 
I strict of Columbia. Hence, a citizen of one of 
-~+ »*« the Territories or of the District of Columbia 

nat open ta 

Citizens of * can not bring a suit in a United States Court. 
_\ 7 V;.: 1 ~ ; irts, which are open to the citizens 
of every Staler and eTen to aliens, are closed against a portion 
: :' :jir :.::-rr_i : :" :lir Vi:::-: 5:.i:rs. 

No direct suit cam be brought against the United States either 
bj a citizen or a Stall without the authority of an act of 

: : ..:_ = : :h : .iment may be brought 

before the Court of dam. ; 

Nor are the officers of the general government liable to be 
sued for acts performed in the regular discharge of their official 
duties • ' T 7 ■ bility of the officers for acts in the regular 
routine of their duties, and their liability to appear in courts, 
and £ leai - ; : . or answer for it in their own persons or 
property, would not only stop the wheels of government, but 
break the whole machine to pieces md put an end to that po- 
litical ideal being — the United States. : 

Clause 2. — Ik all cases affecting ambassadors, ether public min- 
isters r and consols,, and those m which : a part. 
Supreme Court shall have original jurisdiction. In all the other 
cases before mentioned, t: :>mt Cemrt shall h : - peltate juris- 
diction, both as to hew and fact, with such exceptions and under such 
regulations as ike Congress shall m,: 

jfurisiSction is the power to hear and determine a cause. 

- . Original jurisdiction is the right to hear and de- 

original and termine a cause in the first instance. If a suit 

^ff^^ can be commenced in the Circuit Court, for instance, 
then that Court has original jurisdiction in th 7 But if the 



".VTfaeataBfc 411. 



3. II. 2. THE JUDICIARY — JURISDICTION. 1 93 

case must be commenced in the lower court, then the Circuit 
Court has only appellate jurisdiction. 

The Constitution vests the judicial power in one Supreme 
Court and in such inferior Courts as Congress may establish. 
One Supreme Court must be established, but Congress may ex- 
ercise its discretion as to the number and character of the inferior 
Courts. So, also, the Constitution itself prescribes the cases in 
which the Supreme Court shall have original jurisdiction; that is, 
the cases which may be commenced in the Supreme Court. 
All other cases to which the judicial power of the United States 
extends must be commenced in inferior Courts, and come before 
the Supreme Court only by way of appeal or review. 

" It has been decided by the Court that this original jurisdiction can 
neither be enlarged nor diminished ; because, if enlarged it would detract 
from the Constitutional appellate jurisdiction; and, if diminished, it 
would so far deny all jurisdiction to the Supreme Court, which can take 
appellate jurisdiction only in 'other cases.' It must also be exclusive; 
because, if a case of this kind can originate in any other Court, this 
Court, not being able to take appellate jurisdiction, could have no juris- 
diction at all." 1 

The language of this clause, as to the appellate power of the 
Supreme Court, implies the establishment of the inferior Courts 
in which the suits can be commenced. As already stated, two 
inferior Courts have been established : the Circuit Court and the 
District Court. The act of Congress establishing them pre- 
scribes in what cases the District Court and in what the Circuit 
shall have original jurisdiction. Of some cases, the District 
Courts were to have exclusive original jurisdiction; and of others, 
this jurisdiction was to be concurrent with the Circuit Courts and 
the State Courts. So, also, the cases are prescribed which may 
be carried from the District Court up to the Circuit, and those 
which may be carried from the Circuit up to the Supreme Court. 



1 Farrar, page 468. 
A. C— 17. 



194 THE CONSTITUTION. 3. II. 2. 

Unless Congress had made these "exceptions and regula- 
tions " the Supreme Court would have, by the Constitution, ap- 
pellate jurisdiction in all the cases coming under the cognizance 
of the National Courts, except those in which the Constitution 
had given them original jurisdiction. Congress has " excepted" 
some cases out of the appellate jurisdiction of the Supreme 
Court, giving the final disposition of them to the inferior Courts. 

The Act of Congress now referred to — that of 1789 — pro- 
vides for the exercise of appellate power by the Supreme Court 
in certain cases which have been decided by the highest State 
Courts. Of course, these cases involve the Constitution, laws, 
or treaties of the United States; otherwise, the decision of the 
State Supreme Court would be final. 

Two views are held as to the appellate jurisdiction of the Courts. The 
language of the Constitution is, "In all the other cases before mentioned 
T v s of t ^ ie Supreme Court shall have appellate jurisdiction both as 

Appellate to law and fact, with such regulations and exceptions as 
Jurisdiction. Congress shall make." Some maintain that the expres- 
sion, "with such exceptions and regulations as Congress shall make," 

gives Congress the control of the whole matter. They 
One View. ' . ,,..,.. 

hold that the Courts can exercise appellate jurisdiction 

in those cases only which Congress has provided for. • 

Others hold that the Constitution itself vests the judicial power of the 

nation in the Supreme Court, and such inferior Courts as Congress may 

establish. As Congress is not dependent upon the Presi- 

The other ^ ent f or aut hority to legislate, neither are the Courts de- 
View. 

pendent on Congress for authority to exercise their judicial 

functions. According to this view the whole judicial power belongs to 

the Courts. "Congress may remove or 'except' some cases out of the 

appellate jurisdiction of the Supreme Court by giving it to some other 

Court of the United States, but not by abolishing it, or leaving it to be 

exercised or not by anybody else." Though the former of these views 

has been the one adopted in the main, both by the Legislative and Judicial 

departments of the government, the latter seems to be more in accordance 

with the spirit and letter of the Constitution. 

The Courts of the United States have a wider scope than 
those of Great Britain. If a law of Congress conflicts with the 



3. II. 2. THE JUDICIARY THEIR POWER NOT POLITICAL. 195 

Constitution, the Supreme Court may declare it null and void. 
But the Courts of Great Britain can only interpret and apply 
the statutes of Parliament; they can not declare _ __ 

' J Courts of the 

them null. There is no question of constitution- u. s. and of 
ality or unconstitutionality touching an act of the Great Bntain ' 
British Parliament. Parliament itself is supreme for law-making 
purposes; it possesses all the legislative power of the British 
people. But while Congress can repeal or amend their own 
statutes, they can not alter or amend the Constitu- _ ,. 

7 J Parliament 

tion. The Constitution is the work of the people, and 

and they alone can amend it. The legislative Congress, 
power of Parliament, therefore, is broader than that of the 
Congress of the United States, and, as a consequence, the 
province of the British Courts is narrower than that of ours. 1 

It has been already said that the powers of the Courts are 
judicial, not political. Thus, if there were two contending 
parties, each claiming to be the rightful govern- p f 

ment of France, for instance, the question would courts 
not be left to the Judiciary. So if there should be Ju ^^ ia1 ' " ot 

J J Political. 

a contest between two parties in a State, each 
claiming to be the legitimate government, the question would 
be a political and not a judicial one. The Supreme Court has 
itself decided that certain questions were political, and therefore 
did not come within its jurisdiction. The judiciary can not 
prescribe a policy for the government of the country. That 
must be left to the other departments. The judicial depart- 
ment can not restrain the others in their action, though the acts 
of both, when performed, are in proper cases subject to its 
cognizance. 2 

There is danger, in times of high political excitement, that one depart- 
ment may encroach upon another ; but no government, save an absolute 
despotism, could be framed in which this liability would not exist. We 
have a right to assume that each department of the government will 



1 Yeaman's Study 0/ Government, Chap. vii. 2 4 Wallace, 500. 



196 THE CONSTITUTION. 3. II. 2. 

honestly and in good faith confine itself to the duties which by the Con- 
stitution have been assigned to it. 

Apprehension is sometimes expressed lest the Supreme Court, 

by deciding acts of Congress to be unconstitutional, may ob- 

The courts struct the work of legislation and block the wheels of 

and government. But it must be remembered that each 

"Ongress. of the three great departments of the government 
is clothed with great pow r er, and each may do incalculable mis- 
chief, if so disposed; yet the history of the nation does not 
show that this power has been so used to any considerable ex- 
tent. In general, the National Courts have been extremely 
cautious in regard to interference with the laws of Congress. 

"It is an axiom in our jurisprudence," says Judge Swayne 
(United States vs. Rhodes and others), "that an act of Con- 
gress is not to be pronounced unconstitutional unless the defect 
of power to pass it is so clear as to admit of no doubt. Every 
doubt is to be resolved in favor of the validity of the law. 
Since the organization of the Supreme Court but three acts of 
Congress have been pronounced void for unconstitutionality." 

The first instance was in 1801, at the beginning of Mr. Jef- 
ferson's administration. Near the close of the administration 
Laws °f ^ r - Adams, a person was appointed to office, 
Declared Un- and his commission made out but not delivered. 
Mr. Jefferson withheld the commission. Applica- 
tion was made to the Supreme Court for a writ of manda?mis to 
compel Mr. Madison, the Secretary of State, to deliver it, the 
judiciary act of 1789 authorizing the Supreme Court to issue 
such writs. But the Court, while they held that to withhold 
the commission was an act not warranted by law and violative 
of a vested legal right, decided that clause of the act of 1789 
to be unconstitutional, as it gave the Court original jurisdiction 
where the Constitution had not given it. 1 



1 1 Cranch, 137, Marbury vs. Madison. 



3. II. 2. THE JUDICIARY — DECISIONS. 1 97 

The second instance was in the celebrated Dred Scott case in 
Mr. Buchanan's administration, in 1857. The Court decided 
that the eighth section of the act of Congress of 
1820, preparatory to the admission of Missouri into r< case° 
the Union, commonly called the "Missouri Com- 
promise," was unconstitutional. This section prohibited slavery 
in that part of the Louisiana territory lying north of thirty-six 
degrees thirty minutes north latitude, and not included in the 
State of Missouri. 1 (It was claimed by the minority of the 
Court at the time, and by other Judges of the same Court 
since, that this question was not before the Court, and therefore 
that what was said in regard to it was no more binding than the 
views of the minority.) 

The third case was that of Garland, of Arkansas, which was 
tried in the winter of 1866-7. Congress had enacted (Act of 
July, 1862, amended by that of January, 1865) 
that all officers of the United States, including - a ^ e ° 

o Uarland. 

attorneys practicing in United States Courts, should 
take a test oath. The Supreme Court decided that this act was 
unconstitutional as to attorneys of the Supreme Court who 
were such before the rebellion, as being a bill of attainder and 
an ex post facto law. 2 

The last two decisions were made in times of high political 
excitement, and were severely commented upon by lawyers; 
the dissenting judges also gave their reasons for believing the 
laws in question to be strictly constitutional. Some other cases 
have occurred more recently, but they are comparatively unim- 
portant. 

The fact that, in a period of more than fourscore years, 
Congress enacted but three laws which, in the judgment of the 
Supreme Court contained any thing conflicting with the Con- 
stitution, is a proof of the care and caution of Congress on the 



1 19 Howard, 393, Scott vs. Sandford. 
2 4 Wallace, 334, Ex parte Garland. 



out hand, am : 

. chnisn: upon t - I ■ . e i -:>anmen 

moBOL 

Clause 3. — Ti 

.3,1. ha: - 

." '.T'v-v ma 

. ' i b r men. 

inq " _ mns: al_ trumnn m :nt 

ruii: : :._-.-- hf nan :>t man- 

the bi 

lr. I.unny- 

mede. Tune : . iH be 

or outlawed, or 
injured : no: 

mei " . ■ _ ..: - 

upas him. nor send upc: _. a 

rxuttemus,. is interpreted tc nsin _.... 1 vasa sfa zined 

i 
suppose- .. " uajrmen: 

son before any --. ..;■- 9 . □ Be tc 

try hi 

7. - "" ■ . - Bins 

difir--: ■ ... . -- - men inn cum .and. 

Eao 
snaL : I - an - . . t byl .. .. : 

. " . jnrj mj 
stan. t mm h .. e Unrmf : 

1 bilk] :. - tria i . j . ur* 



] ■...-. - - j 



3, II. 3- THE JUDICIARY TRIALS. 199 

Most of the cases that come before the Supreme Court, and many of 
those before the lower Courts, are decided by the Court ; there is no jury. 
But the Judiciary act of 1789 provides that issues of fact, in the District 
Courts, in all causes, except civil causes of admiralty and maritime juris- 
diction, shall be by jury. So in the Circuit Courts, with the exception of 
equity suits, besides those above named, the trial of issues of fact shall be 
by jury. But the Constitution requires that all criminal cases, before any 
United States Court, shall be by jury. Cases of impeachment are tried 
by the Senate, as we have seen. 

The trial must take place in the State where the crimes were 
committed. This is a provision in favor of the accused. He 
is made to suffer as little inconvenience as possible. 
Offenses "not committed in any State" are those Triai° 

in the District of Columbia ; in the organized Terri- 
tories ; in the Indian country ; in the forts and arsenals of the 
United States ; and upon the high seas. Provision is made by 
law for all these ; those committed upon the high seas are tried 
in the State where the vessel first arrives. 1 

With us there is no conviction unless the jury are unanimous. 
"The unanimity required in the verdicts of English and Amer- 
ican juries was not originally required among the 

. ... . . . . . . Unanimity of 

people with whom the institution had its origin; the jury, 
the verdict being reckoned by a majority, except 
among the Normans after they went to that province of France 
which has since borne their name. * * In Sweden the jury 
exists to-day as it has existed for many centuries. A verdict is 
given by one half the jury, or any greater proportion, and the 
judge; or by a unanimous jury against the opinion of the 
judge; there being no verdict when the majority are opposed 
by a minority and the judge. 

"We could now well consider whether absolute unanimity may not 
safely be dispensed with ; whether the jury is not less a necessity in a per- 
fectly free community of equals than in one composed of the three orders; 



1 Paschal's Annotated Constitution, page 211. 



::: ~^ ::: :.::;t: .-.rem - 

" : --. _ t" ;: :_i - : . . : - :. -"_t . : r" -y- : : : z: ".....:_ r~: v— r. :.:'■: ii:-: 
ret: : rrec: : :.: . :: t-Z-Zt.- :c::: — r: ~: -_-_:.: .: ;: r Arurt : := :: 'zt 



- - e: - : : r 



«>~t z - :: :.-."::.:.. .-. 

'zlz'i Tt-i'z :: Af r_:;r:: ::' ::.: ;uii::irr 

A rr. tr. :~tr. : 5 — . - - / 



.-_-; r .:. :. :. ~ ../.: A A-"-! ."' A -"" ' -'■ "-- : 7 - v " '-*'--- ^' .v ?7 - : - 
p:l'.-:z ;r ;*. ."-..•'.A .j.v .v .v . 
£-:r-±-:z :-' AA. ."At. /-/-./:- 



7 t:t ::r : -.7 . ■ : : . : tr iz.i At red: ysrj 

1: 7: i-tir^ : 7: : : : 71 rrt : : 1 ; - _sti ::. : _: iiv 
i :tr~ Art r:: : 

-.izi: 7: :•:' — tr. . r: : r : : 

:. "tur -- : 77 E>At::t: - - I: 

: - 

.A— ..- ■ -. ._: ; 7 . . : : 

lirr ::' :.. :::::: -: - --.■ :.._r 7 „ : 



■ - 



Amend. 5. THE JUDICIARY — TRIALS. 201 

them. An indictment is a formal accusation drawn up by the 
proper officer — in the United States Courts the district attor- 
ney — charging offenses upon certain parties. It is Prese ntment 
the duty of the grand jury to examine the grounds and 

of this accusation. If the evidence seem to them n 1C men ' 
insufficient to warrant a trial of the party accused, they endorse 
upon the bill of indictment "not a true bill," or "not found," 
and the prisoner is released. But if they regard the accusation 
as well founded, they endorse upon the indictment the words 
" a true bill." In this case they are said to find the indictment, 
and the person accused must be brought to trial. A present- 
ment may lead to an indictment or it may not. Sometimes it is 
a mode taken by the grand jury to call public attention to cer- 
tain acts which are thought worthy of reprehension. Though 
the Constitution says no person can be tried unless on a present- 
ment or indictment, no person is in fact brought to trial except 
on indictment. Congress has never authorized trials on pre- 
sentment. 

No person may be subject to a second trial for the same 
offense. That is, when by the verdict of a jury a man has 
been regularly acquitted or convicted of the offense 

Second Trial. 

charged, and judgment has been pronounced, he 
can not be tried for that offense a second time. But if the jury 
could not agree, or were discharged before a verdict was 
rendered, or if judgment was arrested after a verdict, or a new 
trial granted in his favor, he might be tried again. 

No person may be compelled to testify against himself, or be 
deprived of life, liberty, or property, without due process of 
law. In former times criminals were compelled, „ . ., 

1 7 Privileges 

and in some countries are now, to be witnesses of Accused 
against themselves, and even torture is used to Persons, 
wring from them a confession of guilt. Though the protection 
to the citizen specified in this Amendment was among the 
common-law privileges, it is inserted here for additional security. 
Private property shall not be taken for public use without just 



oksthit: 

:z: :c;c:_::_ : ■ ::- ".t=."Z"" :r zc- Z'~vzizzcrfz: ^zzizzzzzt y 

zzrz/r. 
: zrfczzz. . .. ■ ..:- -- 

": . - : :.. .. 

Amenflmsn: t — , -rssamiamis -Mr sec cuscS Mil 

..::: j>l ii:.rr:c :. zrrn ~: rrim : ~.z. jz c-:r y:?—r:z. :.::.:,. 
I 

jgftiimz 

■ 
zzzzzyyy y~ : vz, ziztjl I :. zczz. - -zr; . izzyjzzzyyyr 

. :.: :. 
■paxta 

zvzcv,-. z zz~ nr~ : zzzc-~ zz- zzzzz' ",~" z- •: ' 

"ncczf s c .s. ^ ■ zzz_ zicrcr zr-f.cz z_; zzzzzcz-zzz. z_zz ~zzr- zz- 

. . 

- zrzzi; 
: 

. v . .. ... . 

. zj. czzz: - -:: . : ... : . . 

: TZZZZifSZf ZZ : .. . . 



_. 



Amend. 7. THE JUDICIARY — TRIALS. 203 

ed, and executed, without the intervention of a jury." x " The conspirators 
who assassinated the President of the United States while the country was 
in a state of war and while the city of Washington was under martial 
law, were triable by military commission under the act of Congress, and 
not entitled to a trial by jury." 2 "The Constitution contemplates the 
possibility of a state of public danger arising from the presence of a 
foreign or domestic foe. * * It contemplates the necessary suspension 
for the time being, and in particular localities, of the civil functions of the 
government, that the martial powers of the same may be efficiently exer- 
cised for the security and welfare of the nation." 3 

Amendment 7. — In suits at common law, where the value in 
controversy shall exceed twenty dollars, the right of trial by jury shall 
be preserved ; and no fact tried by a jury shall be otherwise re-exam- 
ined in any Court of the United States, than according to the rules 
of the com?non law. 

The phrase "common law" is used in contradistinction from equity, 
admiralty, and maritime jurisprudence. It is the common law of England, 
the lex non scripta, the immemorial customs of the country. Article III., 
Section 2, Clause 2, gives to the Supreme Court appellate jurisdiction both 
as to laio and fact. "The real object of that provision was to retain the 
power of reviewing the fact as well as the law, in cases of equity, and 
admiralty, and maritime jurisprudence." But as it was thought by some 
to authorize the Supreme Court to review the decision of a jury in mere 
matters of fact, and thus reduce to a form the right of trial by jury in 
civil cases, this Amendment was proposed to remove the misapprehension. 
The rules of common law recognized but two modes of re-examining facts 
tried by jury; first, the granting anew trial by the Court before which the 
issue was tried; and, secondly, by a writ of error. A 7urit of error removes 
nothing for re-examination but the law. An appeal would remove the 
cause entirely, subjecting the fact as well as the law to a review and a 
re-trial. But an appeal is a process of civil law origin and not of 
common law. 

Sec. 3, Clause I. — Treason against the Ufiited States shall 
consist only i?i levying war against them, or in adhering to their 
enemies, giving them aid and co?nfort. No person shall be convicted 



1 Tiffany, page C6G. - Paschal, page 2G4. 3 Tiffany, page 259. 



204 THE CONSTITUTION. 3. III. I. 

of treason u?ikss on tlie testimony of two witnesses to the same 01 erf 
act, or on confession in open Court. 

Treason is the highest crime known to society, because it 
tends to the destruction of the government itself. A traitor is 
Treason always regarded as meriting the severest punish- 
Petit and ment that society can inflict. As treason is a 
High. breach of allegiance, it can be committed by one 
onlv against the government to which he owes allegiance. Most 
governments have made the word treason include many offenses 
which were not strictly treasonable, and thus sometimes persons 
have been put to death for crimes for which some milder pun- 
ishment would have been sufficient. As the word implies a 
breach of faith, it was/;'/// treason for a wife to kill her husband, 
or for a servant to kill his master. The act was more than 
murder: it was a kind of treason. For a subject to attempt to 
take the life of the king or queen, or to levy war againt the 
king, or to adhere to his enemies, was high treason. 

:en a tyrannical king was on the throne, his judges would 
often declare offenses to be treason which the people never sus- 
pected to be treasonable. This was called con- 

Constructive ,• -p .»■ 

„ structive treason, lo prevent this, a statute was 

Treason. r 

enacted in England in the time of Edward III., 
which defined the term. This statute comprehended the various 
kinds of treason under seven heads. The third of these was, 
levying war against the king in his realms : and the fourth was. 
adhering to the king's enemies in his realm, and giving them aid 
and comfort in his realm or elsewhere. 

Our Constitution takes a part of this statute of Edward III. 
for its definition of treason. It is made to consist only in levy- 
ing war against the nation, or in adhering to its 
D f Treason enemies, giving them aid and comfort The pur- 
pose was to make the meaning as definite as 
possible, that all opportunity for constructive treason might be 
removed. Mr. Madison thought the definition was too re- 



3- HI. I. THE JUDICIARY — TREASON. 205 

stricted, and that more latitude ought to be left to the discretion 
of Congress. But the Convention preferred to place the defini- 
tion in the Constitution itself, and not to leave it to the 
judgment of Congress. 

It has been decided by the Court that there must be an actual 
levying of war; that a conspiracy to subvert the government by 
force is not treason. But after war has been com- 
menced, men may give aid and comfort to the ~ * .° 

' J o bnemies. 

enemy, although they may not actually bear arms. 
The language of the Court is : If war be actually levied, that is, 
if a body of men be actually assembled for the purpose of 
effecting by force a treasonable purpose, all those who perform 
any part, however minute, or however remote from the scene of 
action, and who are actually leagued in the general conspiracy, 
are to be considered traitors. 1 

While the Constitution thus makes the offense of treason to 
embrace the giving aid and comfort to the enemies of the 
country, opinions may differ in regard to what con- 
stitutes "aid and comfort." During the late civil in the late 
war, two steamers belonging to a steamship com- War> 

pany had been seized for the rebel service. Subsequently, 
payment was offered for them to the agent of the company, 
when he was informed by the government that acceptance of 
payment from the rebels would be treated as an act of treason 
against the United States. Said Mr. Seward, Secretary of 
State : " It is treason for any person to give aid and comfort to 
public enemies. To sell vessels to them which it is their pur- 
pose to use as ships of war, is to give them aid and comfort. 
To receive money from them in payment for vessels which they 
have seized for those purposes, would be to attempt to convert 
the unlawful seizure into a sale, and would subject the party so 
offending to the pains and penalties of treason, and the govern- 
ment would not hesitate to bring the offender to punishment." 2 



1 Ex parte Bollman, 4 Cranch, 126. 2 Tiffany, page 283. 



2o6 the coxsihtjtk ■ 5 .:::.: . 

In times of rebellion or aril war, all persons need to exercise 
great caution in regard to their conduct and language, lest they 
snbiri: - 7 :.t : :' . ... i:: ani :: ..:'.:: :: 

the enemies of their country. Actions and words which in 
other circumstances would pass unnoticed may be productive 
of grei: :':.:-: ^vhen the life of the nation is endangered. 

All good citizens wiD, therefore, at such times studiously re- 
frain from whatever might bear an unfavorable construction. 

Conviction of treason requires the testimony of two witnesses 
to the same overt act of treason, or a confession in open Court. 
A private confession passes for nothing. 

iron Burr, who had been Vice-president of the United 
States was tried for treason in 1807 and acquitted. 

Clause 2. — The Congress shaE have power to declare the pun- 
ishment of treason, but mo attainder of treason shall work eorrup- 

:.;■■ .--' ]'.:;■ .'"/'.;"> i:..r<.. {:.:<:: £~ r :~.z :'.'. .:/<. :/ : '-..{ :>.■:: -. 
zr.z: :::Z. 

Had this clause been omitted from the Constitution, Congress 

would still ' :.:: :z- ; -: :: it : .::-. 

should be inflicted on a traitor. It was inserted. 

Punishment. doubtless, to prevent the barbarities usually con- 
nected with the punishment of treason and to limit 

the effects of attain it: A: : ::i:r.z :: : 7 I:., .. : z : .-.■.- 
judg:r.rr.: itself pronounced upon one who had been convicted 
of treason involved certain consequences in the mode of his 

execution as well as hi regard to his estate. The offender was 
put to death in a cruel manner. His bowels were to be taken 

out while he was yet alive, and burned in his presence. His 

1.7:1 "\:e :_: :z ir. f his : ■:■:;■" ::•:::: lit: : _ir:t:5 

The judgment also involved attainder, which worked corrup- 
tion of blood or forfeiture. There was no judg- 

::t:: ::" :.:::::: it: :_: ::.: ::::.;- it: :':.. :~r: :::t 
judgment as a matter of course. And ::..: ::::.:. 1 -.: 1z.1~.ziti 



3. III. 2. THE JUDICIARY TREASON. 207 

corruption of blood or forfeiture as a natural consequence. All 
his property, of every description, was forfeited. And not only 
so, his children could not inherit through him from corruption of 
his ancestors. All inheritable qualities were de- Blood, 
stroyed by corruption of blood. In a country where real estate 
was entailed, the children were thus made to suffer for the offense 
of the parent. If the property of the traitor himself were con- 
fiscated to the government, there would be no hardship to the 
children, for the heirs have no right to the estate while the 
ancestor lives. But if the blood is corrupted so as to cut 
off the connection between children of the traitor and his 
ancestors, and prevent any inheritance descending to the former 
from the latter after his death, the children would suffer. 

Our Constitution mitigates the severity of this punishment. 
It provides that the offender himself shall bear all the punish- 
ment. There shall be no corruption of blood 

. . Punishment 

except during the life of the party attainted. As Mitigated 
Mr. Madison says, "The Convention have re- by the 

t ~ r ... Constitution. 

strained Congress from extending the consequences 
of guilt beyond the person of its author." 1 If there should be 
any attainder in the punishment of treason, it must not be 
allowed to work corruption of blood after the death of the 
traitor. The corruption of blood must then cease, and there 
can be no new forfeiture. It does not mean, as some have 
supposed, that if the property of the traitor has been confis- 
cated it must be restored to his heirs at his death. This would 
involve the absurdity of forbidding the taking away, except for 
the short period between sentence and execution, the property 
of one who had been guilty of the highest offense known to 
society, while minor offenses are often punished with heavy 
fines. 

The attainder spoken of in this clause must be that connected 
with the judgment pronounced by a Court, and not a legislative 



1 Federalist, No. 43. 



;;: rzz i : tt::m 5. ::.: :. 

attainder. J : : we hare already seen tfeit Congress is far- 

ziiizz : :. ..= : ±2 ?775 777 -77571 : : I- ■::" 17: 7.:t: 
~:z~:--: :...'.: 1:7712 ::: 1 iiiti. i2ii~~ 12: . ■■-. : :" 

7:7::::. ;_: ::: :::::• :: :.-: :::.:::: : 7 : 

I ; :: : :' AitI. : - :-: 1 : : .:::i. : 1: : 722 : : •':. : 7 : 

7.2 - ■ . ... ..t i —.: - . " : ; :r J2I7 i-ii . in 

-__-.. .. 1:: ::' r:ir:rr5 222722Z 72: 72 r:;::: 57771 
::.:--:;• 577: 1227 11: 75 5_ivf5 51:17 ';- 71112 :::: 
" :::: :: ::::: :.i:::::: ::':;.: 7 77 12 5771 7 7- 

::;:::.:: :':: 11: -2S= 77 t~t ; tirr. 11: riri 1:: Les= :'- 7 ::i 
- .;.;.- 7 i : '_'. ; 7 5 in 2 il : E : t : . r ~ ." : f :': - t - 7 -. ;. 7 : : 7 
levied on any of his property,, real or personal, excluding 
=7-75 _ : r '-.'. ~'ii 1: : 77 17:2-2 :;■ 2 77: : 257 771. 1::- 
77.7 77: r. : : .:.■.■:.:.■.::. : 11 ft: 72 2:: 51: i_i :«2 5 ■: 715771 
1= :: — :r£ 1 7:12772 ::" rtil =-: 7 

This rFsnhnion was passed because die President; 
7 7.77 : :' 777 7757111:1 i:~ 722: 1:15.17:2- 
iizj -.= 7.-7:7- ::' rtil :r:;trrr ex:t;: i— t - 



7":i :: 7. ""7 :i 7.577 27773 5>27 ; 7. ;_ :: 77.7 2:: :::::: 
111: ■ 1: 77777 :: 77721: :":: iij : :' 72 :i27S2-5 1:72- 

77777 :: ::i :: :: 7 7:77: :: 7777 

7.7 . I 7 : 7 712: 1 I 777771 7 77 2 77. 77 5 77 L. "77. 

v 7 7 7:27:2: 7 15 112 .773:272: .1 ::: 

:i77 77 7 :.".: 71-5-7 7 212 . 177:77 7.:i2: 1 77 72 7. 

7:77 ::' 77157 '77 _7 7 21272 7 717777 7 7 572: 7- 

7 7.5 if 7 7 7 72 2 7 77 7. 7: 7.. 7 1 7 ~ 2715 7 72 7: 

2 7. IT ±7 : 77.777 7 75727 

7.7 772272 7 127 2 7 II 7 7 7 7 7 7_r".~ 77 7l r 

77:7: 7.77.77-1 72 7 72 1177121 5272 77 127 



4. I. THE JUDICIARY TREASON. 209 

with fines and imprisonment; but no conviction or judgment, 
as such, or by its own force, is to work corruption of blood or 
any forfeiture. The offender must give up so 

. ' . Its Meaning. 

much of his estate as is needed to pay the fine im- 
posed ; but, that being done, there is to be no loss of additional 
property, in the way of forfeiture, as a consequence of conviction 
or judgment. Had Congress made the punishment of treason 
to be death and the absolute forfeiture of all the estate of the 
traitor, they would not have gone beyond the authority con- 
ferred on them by the Constitution. They preferred not to go 
to the limit assigned them. They enacted that attainder of 
treason should not work any corruption of blood or forfeiture. 
But at the same time they made an absolute confiscation of 
property for offenses much less heinous than treason. 1 

As treason is a crime against sovereignty, a violation of one's 
allegiance, there can be no treason against a particular State. 2 
If a State, by its Courts, punishes treason, it must No Treason 
be not as treason against itself, but as treason Against 
against the Union ; and in this view the propriety 
of that State legislation which affixes to it particular penalties 
is doubtful. 3 

ARTICLE IV. 

Section I. — Full faith and credit shall be given in each State 
to the public acts, records, and judicial proceedings of every other 
State. And the Congress may, by general laws, prescribe the man- 
ner in which such acts, records, and proceedings shall be proved, and 
the effect t1ie7-eof. 

"Full faith and credit" means that credit which the State 
itself gives to the acts, etc., when proven. 



1 For views similar to those here advocated, see Story, Duer, Farrar, Tiffany, 
Mansfield, and others. For the opposite view, see Yeaman, Appendix. 
3 Elliot, V. page 449. a Jameson, page 56. 

A. C— 18. 



2IO THE CONSTITUTION*. 4. II. I. 

"The public acts " are the legislative acts, the enacted laws 
of a State. 

" Records" are the registration of deeds, of wills, legislative 
journals, etc. 

-'Judicial proceedings*' are the proceedings, judgments, 
orders, etc., of courts. 

Whenever the laws and acts of one nation come into exami- 
nation in any forensic controversy in another nation, they must 
be proved like other facts. The Constitution provides that this 
shall not be necessary as between the different States of the 
Union; that the judgments, etc., of one State need not be re- 
examined in another. But the manner in which the acts and 
judgments shall be authenticated, and what their effect shall be, 
is to be left for Congress to declare. 

In 1790, Congress enacted that the acts of the legislature of a State 
should be authenticated by its seal. And that the records of a Court 
should be proved by the attestation of the clerk and the seal of the Court 
annexed (if there be one), with the certificate of the judge. It was pro- 
vided, also, that the records thus authenticated should have such faith and 
credit in the Courts of other States as they have in the Courts of the 
State from which they are taken. 

Sec. 2, Clause i. — The citizens of each State shall be entitled 
to all privileges and immunities of citizens in the several States. 

Though the word citizen is repeatedly used in the Constitu- 
tion, it is nowhere defined in the original instrument. But the 

Fourteenth Amendment says, ' ; All persons born 
citizens !? or naturalized in the United States, and subject to 

the jurisdiction thereof, are citizens of the United 
States and of the State wherein they reside." Prior to the 
abolition of slavery, only free inhabitants born in the United 
States, or naturalized under the laws of Congress, would have 
been considered citizens. Every citizen of the United States 
is a citizen of the State where he resides. One may be a citizen 
of the United States and not a citizen of any particular State, 



4- II- I. PRIVILEGES OF CITIZENS. 211 

because his residence may be not in a State, but in a Territory 
or in the District of Columbia. But whenever a citizen of the 
United States becomes a resident of a State, he becomes a 
citizen of it also. 

This clause of the Constitution provides that a citizen of one 
State, on removing to another, shall enjoy all the rights and 
privileges of the citizens of that State. But he 

1 ° . A Citizen's 

can not claim any which were peculiar to the State Rights in 
he has left. He can not carry the local laws of Another 

State. 

one State with him when he removes to another. 

This clause also provides that the person and property of a 
citizen of one State shall be secure in every other State. No 
other part of the Constitution has been so fre- 
quently or flagrantly violated as this. Indeed, securTthese. 
until 1 866 no law had been enacted by Congress 
for carrying its provisions into effect. Early in that year a bill 
was passed entitled "An Act to protect all persons in the 
United States in their civil rights, and furnish the means of 
their vindication." It was vetoed by President Johnson, but 
receiving the requisite two thirds vote of each House became a 
law April 6th, 1866. It is known as the Civil Rights Bill. 

It declares that all persons born in the United States, and not subject 
to any foreign power, excluding Indians not taxed, are citizens of the 
United States ; and all such citizens, of every race and color, without 
regard to any previous condition of slavery or involuntary servitude, shall 
have the same right, in every State or Territory in the United States, to 
make and enforce contracts, to sue, be parties, and give evidence ; to in- 
herit, purchase, lease, sell, hold, and convey real and personal property; 
and to full and equal benefit of all laws and proceedings for the security 
of person and property. 

This act of Congress is, obviously enough, in conflict with the 
language of Judge Taney in the Dred Scott case, 
that "a free negro of the African race whose r l 

Case. 

ancestors were brought to this country and sold as 

slaves, is not a citizen in the meaning of the Constitution." But, 



212 THE CONSTITUTION. 4. II. 2. 

as has been already stated, it has been maintained by other 
members of the Supreme Court that this point was not before 
the Court; and therefore the language above quoted is not to be 
regarded as the decision of that body. 

The study of our governmental history shows that the emanci- 
pation of a slave was exactly equivalent to the naturalization of 
an alien or foreigner. As naturalization removed the disquali- 
fication of the alien, so emancipation removed that of the slave. 
This was the decision of the Supreme Court of North Carolina, 
in 1836, as delivered by Judge Gaston, and it was re-affirmed 
by the same Court in 1848. 

That the language of Judge Taney to the effect that " free negroes "were 
not regarded in any State as citizens at the time of the Declaration of 
Independence and the formation of the Constitution," is not in accord- 
ance with the teachings of history, two facts will suffice to show. At the 
time of the ratification of the Articles of Confederation, all free, native- 
born inhabitants of the States of New Hampshire, Massachusetts. Nc 
York, New Jersey, and North Carolina, though descended from African 
slaves, were not only citizens of those States, but such of them as had the 
::le: r.e;t55-ry : u-lir. :-:;;- 5. 7 :-5r?sei :*-.e :'r- -:"-_:;= :f eLr;::r« :r. eruil 
terms with other citizens. x The other fact is this. On the 25th day of 
June, 1778, when the Articles of Confederation were under discussion in 
Congress, a motion was made that the word " white'" should be inserted 
between the words M free " and " inhabitants" in the fourth article. Two 
States voted for the amendment, eight voted against it, and the vote of 
one State was divided. 2 This fourth article corresponds to the clause of 
the Constitution which we are now considering. It reads : " The free in- 
habitants of each of these States, paupers, vagabonds, and fugitives from 
justice excepted, shall be entitled to all privileges and immunities of free 
citizens in the several States 

Clause 2 . — A person charged in any State with treason, fel; 

or other crime, who shall flee from justice, and be found in another 

State, shall, on demand of the executive authority of the State from 

which he fled, be delivered up, to be removed to the State having 

jurisdiction of the crime. 






izt I- L .=:::::-■ 5~; 1 * Jour. Coot. Canr I .". 



4. II- 2. FUGITIVES FROM JUSTICE. 213 

A State has no authority beyond its own limits. If a criminal 
should escape from one State to another, the former could not 
arrest him because he is beyond her boundaries, „ ... 

J 7 Fugitives 

and the latter could not punish him for offenses from 

committed beyond her jurisdiction. It was neces- Justice. 
sary that a power whose authority extended over the whole 
country should make provisions for the arrest and punishment 
of fugitives from justice. 

Before any law had been enacted by Congress to carry into 
effect this clause of the Constitution, the Governor of Pennsyl- 
vania made a requisition upon the Governor of „ 

1 * Pennsylvania 

Virginia to deliver up an escaping criminal. The and 

requisition was refused by the latter on the ground Virginia, 
that the clause gave him no authority to deliver up the fugitive. 
The case was referred by the Governor of Pennsylvania to the 
President, and by him laid before Congress. In consequence, 
the act of 1793 was enacted. This act provides 
that the demand be made on the executive authority 
of the State to which the fugitive has fled. Accompanying the 
demand should be a copy of the indictment found, or an 
affidavit made before a magistrate, and certified as authentic by 
the Governor making the demand. The arrest is then made by 
the order of the Governor of the State to which the criminal 
has fled, and the fugitive is delivered to the agent of the former. 
All the expenses must be paid by the State from which the 
escape was made. The act applies to the Territories as well as 
to the States. 

A fugitive from justice may be arrested and detained prior to 
the demand by the Governor. The executive upon whom the 
demand is made can not go behind the demand and accom- 
panying charge of the Governor demanding, to determine 
whether, by the laws of his own State, the offense charged 
is a crime. 

The giving up by one nation of a fugitive from justice escap- 
ing from another nation, is called extradition. No nation can 



214 THE CONSTITUTION. 4. II. 3. 

demand of another the surrender of a criminal except in 
consequence of express treaty stipulations. Such 

Extradition. . . . 

treaties now exist between the United States and 
many other nations. 

Clause 3. — No person held to service or labor in one State, under 
the laws thereof, escaping into another, shall, in consequence of any 
law or regulation therein, be discharged from such service or labor, 
but shall be delivered up on claim of the party to whom such service 
or labor may be due. 

The act of February 12th, 1793, was passed to carry into 
effect this clause as well as the preceding one. A "person held 

to service or labor" might be a slave or an ap- 
frorrfLabor prentice. This clause, and that part of the act of 

Congress relating to fugitives from labor, had 
special reference to slaves, though the word slave does not x>ccur 
in the Constitution. The law of 1793 was amended in 1850, 
and made still more objectionable to the friends of freedom. 
The commissioners, before whom alleged fugitives were to be 
taken, might order any citizens to assist in returning fugitive 
slaves; and any person hindering such return could be fined 
one thousand dollars and imprisoned six months, and might 
forfeit, in addition, one thousand dollars to the owner for each 
fugitive so lost. The commissioner was to have a fee of five 

dollars if the fugitive was not returned to the 

claimant, and ten dollars if he was returned. The 
harsh features of this law of 1850, with the repeal of the Mis- 
souri Compromise, and the Dred Scott decision, had much to do 
in directing public attention to the evils of slavery, and in pre- 
paring the people to meet the conflict of 1861. 

The law of 1850, and those sections of the law of 1793 which 

related to fugitive slaves, were repealed June 20th, 
Amendment. l86 4- On the ist of February, 1865, Congress 

proposed an Amendment to the Constitution, 
abolishing slavery throughout the United States. On the 18th of 



4. III. I. NEW STATES AND TERRITORIES. 21 5 

December, of the same year, this was declared to have been 
ratified by the legislatures of three fourths of the States. It is 
the Thirteenth Amendment. Thus was the question of slavery 
at last settled — a question which has caused more disturbance in 
our government than all other questions combined. 

Sec. 3, Clause I. — New States maybe admitted by the Congress 
into this Union ; but no new State shall be formed or erected within 
the jurisdiction of any other State ; nor any State be formed by the 
junction of two or more States, or parts of States, without the consent 
of the legislatures of the States concerned as well as of the Congress. 

Clause 2. — The Congress shall have power to dispose of and 
make all needful rules and regulations respecting the territory or other 
property belonging to the United States ; and nothing in this Consti- 
tution shall be so construed as to prejudice any claims of the U?iited 
States, or of any particular State. 

The Articles of Confederation made no general provision for 
the admission of new States. Canada might come into the 
Union on acceding to the Articles of Confederation „ 

& New States 

and joining in the measures of the United States ; before the 
but no other colony could be admitted unless by Constitut »on. 
the agreement of nine States. Vermont declared herself inde- 
pendent in 1777, and made application for admission; but the 
application was not granted, as Congress was unwilling to offend 
the States of New York and New Hampshire, both of which 
claimed it as within their jurisdiction, and opposed its admis- 
sion into the Union. 1 

From the adoption of the Constitution to the present time 
(1888) twenty-five new States have been admitted: the first, 
Vermont, in 1791; the last, Colorado, in 1876. 
No State has been formed by the junction of two A^mitted^ 
or more States, or parts of States, while four have 
been created within the jurisdiction of other States: Vermont 



1 Pitkin, II, page 314. 



2l6 THE CONSTITUTION. 4. III. 2. 

from New York (claimed also by New Hampshire), Kentucky 
from Virginia, Maine from Massachusetts, and West Virginia 
from Virginia. 

The language of the Constitution is, new States may be ad- 
mitted into the Union. It is not imperative upon Congress to 
admit them. Nor can Congress compel the people of a Territory 
to become a State. For obvious reasons, however, this has been 
regarded as desirable, and as such has been eagerly sought by 
the Territories. 

After the Colonies threw off the yoke of Great Britain, the 

unsettled territory within the limits of the United States became 

a subiect of grave concern. Some of the States 

Claims to J ° 

the Unsettled claimed that those lands were within their char- 
Territory. tered limits, and that to them belonged both soil 
and jurisdiction. Others insisted that, as the war had been 
carried on under a common government, and for the common 
interest, this territory should be considered as the commq'n 
property of the nation. 

On the 6th of September, 1780, Congress pressed upon the 
States having claims to the western country, a surrender of a 
portion of their territorial claims, as they could not 
c * 10 r n es ° s be preserved entire without endangering the stabil- 
ity of the general Confederacy. A month later 
(October 10th) Congress resolved that the unappropriated lands 
that might be ceded or relinquished to the United States by any 
particular State, pursuant to the recommendation of Congress of 
September 6th, should be disposed of for the common benefit 
of the United States, and be settled and formed into distinct 
republican States. 

In accordance with this recommendation, cessions were made 

by different States, as follows: New York, March 1st, 1781; 

Virginia, March 1st, 1784; Massachusetts, April 

by the 19th, 1785 ; Connecticut, September 14th, 1786; 

states. South Carolina, August 8th, 1787. These were 

made before the formation of the Constitution. North Carolina 



4. HI. 2. NEW STATES AND TERRITORIES. 217 

and Georgia had not relinquished their claims when that instru- 
ment was adopted, but they did so afterward : North Carolina, 
February 25th, 1790, and Georgia, April 24th, 1802. The 
language of Clause 2, that the claims of any particular State 
should not be prejudiced, had reference to the claims of the 
last two States named above. 

The Constitution confers on Congress full power to make 
laws respecting the territory belonging to the nation and not yet 
formed into States. Without a specific grant to 

1 ° Power of 

that effect in the Constitution, Congress would Congress over 
doubtless have had this power. The first law, in- theTerntor y- 
deed, organizing a Territory, was enacted before the Consti- 
tution was adopted — the Ordinance for the Government of the 
Territory of the United States North-west of the River Ohio, 
July 13th, 1787. 

As early as April, 1784, after the cessions by New York and 
Virginia of their claims, the Continental Congress passed a 
resolution providing a plan of temporary govern- 
ment for the western territory. There was, how- ^/iys" 31 " 
ever, no organization of government under this 
act, though it remained on the statute book till repealed by the 
ordinance of 1787. This celebrated ordinance, regarded, after 
the Declaration of Independence as the most important act of 
the Continental Congress, and eulogized in the highest terms by 
Webster, Chase, Bancroft, and others, was enacted with immedi- 
ate reference to a colony which General Rufus Putnam and his 
associates of the Revolutionary Army proposed to plant in the 
valley of the Ohio. Their proposal to purchase of Congress a 
million and a half of acres and form a settlement, was followed 
immediately by the passage of this ordinance. It was drawn in 
accordance with their ideas of a suitable government, and some 
of its most important features were undoubtedly the suggestions 
of the Rev. Manasseh Cutler, who negotiated the purchase for 
the company, of which he was one of the directors. 1 

1 The ordinance of 17S7 may be found in the Appendix. 
A. C.— 19. 



2l8 THE CONSTITUTION. 4. III. 2. 

The framers of the Constitution introduced these two clauses 
of Section 3 into the Constitution, that the resolution of Con- 
gress, of the 10th of October, 1780, might be 
of territory carrie d into effect ; and they had primary reference 
to the territory then claimed by different States. 
But the language is broad enough to cover whatever territory 
the United States might subsequently acquire. The Constitu- 
tion nowhere in express terms authorizes the general government 
to enlarge the national domain by purchase, by conquest, by 
annexation, or in any other mode ; but this is one of the powers 
incident to national sovereignty, aud as such it has been re- 
peatedly exercised by the United States. Louisiana was 
purchased under the administration of Mr. Jefferson; Florida, 
under that of Mr. Monroe; Texas was annexed under the 
presidency of Mr. Tyler; and the territory which was obtained 
from Mexico was conquered under Mr. Polk. All these gentle- 
men were strenuous advocates in theory of the doctrine that 
our general government is one of limited and enumerated 
powers. 

There is no doubt that the United States, like other nations, can acquire 
territory and govern it. Though the Articles of Confederation said 

nothing about the government of territory, Congress exer- 
Ordinance c i se d this power, as we have seen, and passed the celebrated 

ordinance of 1787, while the Convention that framed the 
Constitution was in session. After the Constitution was adopted, Congress 
did not deem it necessary to re-enact that ordinance, but merely adapted it 
to the new Constitution, by providing that the territorial officers who, be- 
fore, were appointed by Congress, should now be appointed by the 
President and Senate, and should report to the President instead of to 
Congress. This act, which was passed August 7th, 1789, shows that the 
members of that first Congress under the Constitution regarded the ordi- 
nance as still binding. 

This ordinance, for the government of the North-west Terri- 
tory, was for a long period the model after which other 
Territories were organized. If the territory was at the South, 



4- III. 2. NEW STATES AND TERRITORIES. 219 

that clause of the ordinance which prohibited slavery was 
excepted; if the territory was at the North, the 
government was to be in all respects similar to for other 
that provided by the ordinance of 1787. Acts * 

Including the act of August 7th, 1789, eight separate acts 
were passed, extending through a period of over sixty years, each 
one prohibiting slavery in the Territory organized. 
The power of the general government to make all Slavery in the 
needful rules and regulations for the government of Territories. 
the Territories was not called in question till the winter of 
1856-57, on the trial of the Dred Scott case. In giving the de- 
cision of the Court in that case, Judge Taney said, among other 
things which were not before the Court, that Congress had no 
power to prohibit slavery in a Territory of the United States. 
Even if that question had been before the Court, being apolitical 
question and not a judicial one, it was one over which that de- 
partment of the government had no control. 

In the same opinion die Court held that " the propriety of admitting a 
new State into the Union is committed to the sound discretion of Congress, 
and that the power to acquire territory must rest upon the same discre- 
tion." The power to govern a Territory was not inferred, however, from 
the clause of the Constitution now under consideration, but was regarded 
as the inevitable consequence of the right to acquire territory, which last 
right, as there is no allusion to it in the Constitution, must be a right of 
general sovereignty. Mr. Douglas held that the power of Congress to 
govern the Territories was to be found in the clause authorizing the ad- 
mission of new States ; if States may be admitted into the Union, Terri- 
tories may be governed so as to fit them to become States. 1 It is admitted, 
then, by all that Congress has the exclusive right to govern the Territories. 2 



1 Report on Kansas. 

2 The Constitution of the Confederate States provided for the acquisition of new 
territory, and its government by Congress. But slavery was recognized and protected, 
and the inhabitants of other States and Territories rryght take their slaves into every 
Territory. That Constitution provided that other States might be admitted into the 
Confederacy by a vote of two thirds of the whole House of Representatives, and two 
thirds of the Senate — the Senate voting by States. (Macpherson's History of the 
Rebellion, 1800-65, page 99.) 



220 THE CONSTITUTION. 4. III. 2. 

As soon as new territory is acquired by the United States, 
the right of sovereignty vests in the nation. The authority of 
the nation over such territory is absolute, except as 
Government. m °dined by the treaty with the nation from which 
it was obtained. The people of the Territory 
have no governmental power except as granted by Congress. 
Whenever Congress sees fit it may organize a territorial govern- 
ment. Such a government usually consists of a legislature 
chosen by the people, a Governor appointed by the President 
and Senate, and Judges appointed in the same manner. But 
the territorial authority, whether legislative, executive, or 
judicial, derives its sanction from the sovereignty of the 
nation. 

According to our governmental system, the people of a Ter- 
ritory, while they have civil rights and are entitled to protec- 
_ „ , tion, have no power to govern the Territory, that 

The Status of ^ & ... 

the Residents is, to govern themselves, save as it is given them 
m a by tne general government ; and they can not in 

Territory. ' , . . . 

any way participate in the general authority of the 
nation. But whenever a Territory is admitted into the Union 
by Congress it becomes a State, and as such its people are au- 
thorized under the Constitution to manage their local affairs, 
and to participate in the administration of the nation. When 
a citizen of a State goes to reside in a Territory he leaves be- 
hind him most of his political privileges, though not his civil 
rights. He has no longer any voice in the election of Presi- 
dent or of a member of Congress. He can not take part in 
electing a Governor of the Territory. 

A Territory is a part of the domain of the United States ; it 
is a part of the United States considered as the name of the 
_ . . , country, but it is not in the Union in the sense in 

Relation ofa , 

Territory which a State is. Nor can it come into the Union 
to the except as it is admitted by Congress. It may 

Union. . .... 

frame a State constitution, which its people may 
ratify ; but that does not constitute it a State. The consent of 



4. III. 2. NEW STATES AND TERRITORIES. 221 

Congress is indispensable to enable it to become an integral 
part of the Union. But when admitted, and thus constituted a 
State, it becomes a political corporation for local purposes, and 
a part of the great political organization whose sway extends 
over the whole domain. Our political privileges are thus 
largely dependent upon our belonging to a State. 

As a Territory is not compelled to become a State, so a State 
is not compelled to remain a State. If a State, as a political 
organization, refuses to consider itself any longer a 
member of the great National body, and by delib- surrender 
erate act withdraws from the Union, what then? ofRl & htst >ya 

... . . State. 

The soil is still a part of the domain of the United 
States, and the people who dwell upon it are still subject to the 
Nation. They have simply given up their privilege of managing 
their own local affairs, and all right to participate in the govern- 
ment of the Nation. They have no more political authority 
than the people of a Territory before its admission into the 
Union, and they can have none till Congress confers it upon 
them. 

There is no such political entity known to our governmental system 
as a State out of the Union. The moment the withdrawal takes 
place, the existence of the State as such ceases. _ . . . 

r ' Out of the 

It is no longer a ' ' State. " If its people can maintain union, 
their independence by the sword, they may frame a State not a 
a government and call it what they please. But 
whether successful or unsuccessful, it is no longer one of the 
United States of America. It is no longer a State in the 
American Union. If it fails to gain its independence, it is not 
ti in the Union but under it." 1 

There has not been entire uniformity in the mode of admit- 
ting new States, but the following is the most usual, and may 
be considered the regular mode : when a Territory has a 
sufficient population, a memorial is sent to Congress, asking for 



1 Brownson, Chapter xii. 



22 2 THE CONSTITUTION. 4. IV. 

leave to form a State constitution, and to be admitted into the 
Union. Congress then passes an act. called " an enabling act." 
Mode of authorizing the inhabitants to form a constitution. 
Admitting A Convention is held for this purpose, and the 
constitution thus formed is presented to Con- 
gress for their approval. If the proceedings have been regular, 
and the constitution is free from objection, Congress passes an 
act admitting the new State into the Union (i on an equal foot- 
ing with the original States in all respects whatever." 

The case of Louisiana may be taken as an example. In March, 1 804, 
the region purchased of France, under the name of Louisiana, was 
erected by Congress into two Territories — the District of Louisiana and 
the Territory of Orleans. In February, 1S11, an act was passed "to 
enable the people of the Territory of Orleans to form a constitution and 
7 government," etc. April Sth. 1S12, an act was passed, to take 
effect April 30th, "for the admission of the State of Louisiana into the 
Union, and to extend the laws of the Uniied States to the said State.'' 

This power to admit new States into the Union, and to make 
them equal participants with the older States in the government, 
No Provinces * s " one °f tne new principles introduced into our 
in our system, and is. perhaps, the most anomalous and 
>stem. mos t influential upon its future destiny. All the 
nations of antiquity held immense pn ... which constituted 
a part of the State for purposes of revenue and armies, but 
were never admitted upon terms of equality, and whose inhab- 
itants were never citizens. The idea of constituting a govern- 
ment, to be increased as to the source of law — by its own 
colonization, or by recruits from abroad, is wholly nem. nx 

Section 4. — T7ie United States shall guaranty to every State in 
this Union a republican form of government, and shall protect . 
of them against invasion ; and, on application of thi "..':'. or 



1 Mansfield's F. I ti % page 192. 



4. IV. THE FORM OF GOVERNMENT. 223 

of the Executive (when the legislature can not be convened) against 
domestic violence. 

This clause makes a republican government necessary in 
every State. It could not be obligatory upon the United States 
to guaranty it to the individual States, unless it 
was incumbent on them to have such a govern- Guaranty of 
ment. It is equivalent to saying that "no other Republican 

• 1 i 11-111 Government. 

shall be permitted to be established.' The clause 
prescribes a republican government for all the States, protection 
against hostile invasion, and, on request, against domestic 
violence. Every State must have a republican government, 
and if at any time a State is destitute of one, the general gov- 
ernment is bound to provide it. 2 

This is the only instance in the Constitution where the government has 
a duty enjoined upon it, while the particular department is not men- 
tioned. Here the obligation is from the United States to the States ; but 
whether to be exercised by the President or by Congress is one of the 
questions that has grown out of the reconstruction measures. 3 In the 
case of Rhode Island, the Supreme Court held that "It rests with Con- 
gress to decide what government is the established one in a State. For, 
as the United States guaranty to each State a republican government, 
Congress must necessarily decide what government is established before it 
can determine whether it is republican or not. And when the Senators 
and Representatives of a State are admitted into the councils of the 
Union, the authority of the government under which they are appointed, 
as well as its republican character, is recognized by the proper constitu- 
tional authority. And its decision is binding on every other department 
of the government, and could not be questioned in a judicial tribunal." 4 

The Constitution does not define a republican government. 
The National government may be assumed to be republican in 
form, and thus a model for the States. Mr. Madison says : 
"We may define a republic to be a government which derives 



1 Curtis, II. page 472. a Farrar, page 221. 

3 Paschal, page 242. * 7 Howard, 42. 



2 24 THE CONSTITUTION. 4. IV. 

all its powers directly or indirectly from the great body of the 
people, and is administered by persons holding their offices 
Republican during pleasure, for a limited period, or during 
Government good behavior." 1 "The principle of republican- 
ism is the equal right of the people, the citizens, 
all the members of the body politic. In theory it is the gov- 
ernment of public opinion. * * The fundamental principles of 
right and justice for the government, the representative charac- 
ter of the governors, and their practical responsibleness to the 
governed, are the essentials of republicanism." 2 

The Constitution indirectly requires various provisions in the State 
governments by enjoining duties. The Senators of the United States are 

State Consti- to be elected by the State legislatures. Members of the 
tutions House of Representatives are to be elected by the same 

Referred to. electors as vote for the members of the most numerous 
branch of the State legislature. The Executives of the States are often 
referred to. The Judges are to take an oath to obey the Constitution of 
the United States. Thus, the States must have the three great depart- 
ments of government — the legislative, executive, and judicial. The leg- 
islature must be in two branches, and the most numerous branch must be 
elected by the people. The States are supposed to have written con- 
stitutions (Article VI). 

It would have been the duty of the United States to protect 
each State against invasion and domestic violence had not this 
a state special provision been inserted, for one of the 
Entitled to ends for which the Constitution was ordained was 
to provide for the common defense. In the Con- 
vention that framed the Constitution, " Mr. Rutledge thought 
it unnecessary to insert any guaranty. No doubt could be 
entertained but that Congress had the authority, if they had the 
means, to co-operate with any State in subduing a rebellion. It 
was and would be involved in the nature of the thing." 3 

1 Federalist, No. 39. s Farrar, page 223. 

3 Elliot, V. page 333. 



4- IV. THE RECONSTRUCTION OF STATES. 225 

"It may well be doubted if any dereliction of duty on the part of the 
officers of the State, whether legislative or executive, could afford an 
adequate excuse for the general government in suffering the regular 
administration of the authorized republican government of a State to be 
overthrown and destroyed, or otherwise substantially interfered with by 
domestic violence, under circumstances that obviously required their 
authoritative interposition for the preservation of the peace and good 
order of the community." 1 

The clause of the Constitution now under consideration has 
been brought prominently into notice in the recent secession 
and subsequent reconstruction of eleven States of Eleven states 
the Union. In the six months commencing with Secede in 

-r-v i r> /- j* c ■ i860 and 1861. 

December, i860, ordinances of secession, so 
called, were passed by conventions in South Carolina, Missis- 
sippi, Florida, Alabama, Georgia, Louisiana, Texas, Arkansas, 
Virginia, Tennessee, and North Carolina. These conventions 
were entirely revolutionary, and depended for their justification 
upon success. But success was not theirs. Their armies were 
defeated after an immense expenditure of blood and treasure. 
The doctrine of the right of secession, or, which is the same 
thing, of absolute State sovereignty, which they had deter- 
mined to submit to the arbitrament of the sword, had been 
proved to be utterly untenable, and their States had been placed 
in positions entirely abnormal. 

" Here, then, were brought again into relations of practical subjection 
to the Union certain integral populations, which had once been Constitu- 
tional States, but which, having by truancy from Constitutional courses 
lost something necessary to that character, were such no longer — were, 
indeed, little more than ' geographical denominations ' ; Their 

communities which, although as much in the Union, terri- Anomalous 
tonally, as ever, were properly neither Constitutional States Condition, 
nor Constitutional Territories, but States which had, sua sponte, for pur- 
poses of ambition, divested themselves of their Constitutional apparel 
and donned that of treason and rebellion, and so had forfeited their pre- 



1 Farrar, page 229. 



2 26 THE CONSTITUTION. 4. IV. 

rogative as States to participate in governing the Union, and been rele- 
gated to a condition analogous to that of Territories — a condition in which 
they belonged to the Union, but had rightfully no governing function 
whatever, local or general." * 

The work of reconstruction had commenced in some of the 

States before the close of the war. A large majority of the 

_ legislature of Virginia adhered to the rebellion, 

Reconstruc- . 

tion in but Congress recognized as the law T ful legislature a 
Virginia and m i nor i ty w hich assembled at Wheeling. This body 

in Missouri. J ° J 

sent Senators to Congress, and gave consent to 
the formation of the new State of West Virginia. In Missouri 
the governor and the majority of the legislature adhered to the 
rebellion, and passed an ordinance of secession. The State 
was admitted as a member of the "Confederate States," and 
continued to be represented in the Confederate Congress till the 
overthrow of the Confederacy. But a convention, which had 
been called by the legislature of Missouri in i860, having re- 
fused to pass an act of secession, was reconvened in July, 186 1. 
This body took upon itself the government of the State, and 
w T as recognized as the lawful authority by the general govern- 
ment. 

In December, 1863, President Lincoln issued a proclamation 

to the effect that when one tenth of the qualified voters of a 

The State, having taken the required oath, should re- 

Prociamation establish the State government, republican in form 

and in conformity with the oath, it should be 

recognized as the true government of the State, and should 

receive the benefits of the Constitutional guaranty embodied in 

this clause which we are now considering. In pursuance of 

this proclamation, Louisiana and Arkansas provided themselves 

with loyal State governments, But these States having been 

reconstructed through the military power, the mode adopted 



1 Jameson, page 244, 



4. IV. THE RECONSTRUCTION OF STATES. 227 

was not entirely satisfactory to Congress, and the States were 
not allowed representation in that body. 

The first State that was fully restored to her former relations 
to the Union was Tennessee. On the 24th of July, 1866, Con- 
gress passed a joint resolution "That the State of Tennessee 
Tennessee is hereby restored to her former, proper, Restored in 
practical relations to the Union, and is again en- 
titled to be represented by Senators and Representatives in 
Congress." In the preamble to this resolution it is recited that 
the inhabitants of the State, having been by act of Congress 
declared to be in a state of insurrection, the State government 
can be restored to its former political relations in the Union 
only by the consent of the law-making power ; that the people, 
by a large vote, had adopted and ratified a constitution abolish- 
ing slavery, and declaring void all ordinances and laws of seces- 
sion and debts contracted under the same ; and had organized 
a State government under the new constitution, which had rati- 
fied the Thirteenth and Fourteenth Amendments to the Consti- 
tution of the United States. 

In March, 1867, an "Act to provide for the more efficient 
government of the rebel States" was passed, and later in the 
same month a supplementary act for the same pur- 
pose. This act divided these States into five mili- Districts. 
tary districts, each to be under the command of a 
military officer, who should be charged with the duty of pro- 
tecting the inhabitants in person and property, of suppressing 
all disorder, and punishing crime. Criminals might be tried by 
the local civil tribunals, or, at the discretion of the command- 
ing general, by military commissions. The inhabitants were to 
be registered, and an election held for delegates to a conven- 
tion in each State for the formation of a constitution. When 
such constitution should be approved by Congress, and the leg- 
islature elected under its provisions had ratified the Fourteenth 
Amendment, the State should become entitled to representation 
in Congress. 



228 THE CONSTITUTION. 4. IV. 

Under this act Arkansas was admitted to representation in 
Congress as one of the States of the Union, June 2 2d, 1868, 
Arkansas having framed and adopted a constitution of State 
Restored, government, which Congress decided to be repub- 
lican, and her legislature having ratified the Four- 
teenth Amendment. Three days later an act was passed pro- 
viding for the conditional admission to representation of North 
Carolina, South Carolina, Louisiana, Georgia, Alabama, and 
Florida. These had framed and adopted constitutions of re- 
Remaining publican government, and were to be fully ad- 
states m itted as States of the Union when they should 

Restored, J 

1868-1870. have ratified the Fourteenth Amendment. In all 
the above cases, including Arkansas, the admission was upon 
one or more fundamental conditions prescribed by Congress. 
All the six States made the required ratification, and were ad- 
mitted without further legislation by Congress, except Georgia. 
Virginia was restored by act of Congress of January 26th, 
1870; Mississippi by that of February 23d; Texas by that of 
March 30th; and Georgia by that of July 15th of the same 
year. 

The action of the general government has fully settled this : 
that if a State takes the attitude of hostility to the Nation, and 
The status of re f uses to acknowledge the supremacy of the Con- 

a seceded stitution of the United States, it forfeits its right to 
all participation in the government of the Union, 
and can be restored to its former position only by the distinct 
and formal action of the law-making power of the United 
States. The doctrine that the people of a State may take up 
arms against the Nation, putting forth their whole energies and 
using all their resources to destroy the National life, and yet the 
moment they are subdued claim the right to send Senators and 
Representatives to Congress, is in the highest degree prepos- 
terous. Yet this doctrine was gravely maintained in the 
Minority Report of the Joint Congressional Committee on Re- 
construction, in June, 1866. And many worthy people seemed 



4« IV. THE STATUS OF STATES. 229 

to be involved in inextricable confusion as to the relation of 
such States to the Union. 

The argument assumes this logical form : A State is either in 
the Union or out of the Union. If in the Union, her people 
owe allegiance on the one hand, and are entitled 
to representation on the other. If out of the A L °& lcal 
Union, they do not owe allegiance, nor are they 
entitled to representation. The inference drawn from this is, 
that if the people of a State are not allowed representation in 
Congress there rests upon them no obligation of obedience ; and 
that whenever they acknowledge the obligation of obedience, 
representation is theirs as a matter of right. 

The fallacy lies here. The terms in the Union and out of the 
Union are not necessarily contradictory. A given district of 
the United States may be in one sense in the 
Union, and in another sense out of the Union at D e * * c ^ 

7 Pointed Out. 

the same time. That portion of our country 
called Ohio was a part of the national domain in 1800, and all 
the people living there were subject to the general government; 
in that sense the district and the people were in the Union. But 
the people had no participation in the general government, they 
had no Senators or Representatives in Congress, they cast no 
votes for President in the election of that year; in this sense 
they were not in the Union. A few years later Ohio was made a 
State by Congress, and then she was in the Union in both the 
senses stated. During the rebellion South Carolina was not in 
the Union as Ohio was; she was not out of the Union as 
Mexico was. She had forfeited her right to a share in the 
government, but she was under the authority of the United 
States. 

Whatever forms of language may be used to describe the 
attitude of portions of the country in a state of insurrection 
and their relation to the United States, we may be sure that 
they will not be admitted to a representation in the councils of 
the Nation till, in the judgment of Congress, such admission will 



230 THE CONSTITUTION. 5. I. 

not conflict with the well-being of the country. No claim to be 
admitted, based on the ground ' ' that a State once a State is 
always a State," will have the slightest influence with those who 
shall, for the time being, be entrusted with the legislative power 
of the Nation, no matter what may be their theoretic opinions as 
to the rights of States. The war was commenced in the interest 
of State sovereignty, and the sword has settled the question. 1 
Let us hope that many years may elapse before the general 
government shall again be under the necessity of exercising the 
power with which it is clothed by this Section of the Constitution. 



article v. 

Amendments. 

TJie Congress, whenever two thirds of both Houses shall deem it 
necessary, shall propose Amendments to this Constitution, or, on the 
application of t/ie legislatures of two thirds of t/ie sezeral States, s/uzll 
call a convention for proposing Amendments, which, in eit/ier case, 
shall be valid to all intents and purposes as part of this Constitution 
when ratified by the legislatures of three fourths of t/ie several States, 
or by conventions in three fourths thereof, as the one or t/ie other 
mode of ratification may be proposed by the Congress ; Provided, that 
no Amendment which may be made prior to the year one thousand 
eight hundred and eight shall in any manner affect the first a?id 
fouiih clauses in the ninth section of the first article ; and that no 
State, -without its conse?it, sliall be deprived of its equal suffrage in 
the Senate. 

Definite provision is here made for amending the Constitu- 
tion. The Articles of Confederation could not be altered ex- 
cept with the assent of all the States. The present Constitution, 
however, can be amended with the assent of three fourths. 



1 " It can not be too often repeated that the war was not primarily between freedom 
and slavery. It was the war of the Nation and the Confederacy." Mulford, page 340. 



5. I. AMENDMENTS. 23 1 

There are two modes of proposing Amendments, and two 
modes of ratifying them. Congress itself may propose an 
Amendment whenever two thirds of both Houses 
deem it necessary; or, if two thirds of the State Proposed an s d 
legislatures request it, Congress must call a con- Ratified in 
vention for proposing Amendments. Amend- w 
ments thus proposed become valid when ratified by the 
legislatures of three fourths of the States, or by conventions in 
three fourths thereof. 

Nineteen Amendments have been proposed since the adoption 
of the Constitution ; all of them by the first mode. Two thirds 
of the legislatures have never yet applied to Con- 
gress to call a convention for this purpose. Fifteen Mod e e uled 
of the Amendments proposed have been ratified ; 
and these ratifications have all been by the first mode — by the 
legislatures of the States, and not by conventions. The First 
Congress, which proposed twelve Amendments, adopted this 
method of ratification, and their example has been followed in 
every other case. It is fortunate for the country that a conven- 
tion has never been called for the purpose of proposing 
Amendments. The organic law of a people should be framed 
with great care and altered with the utmost caution. A body of 
men convened for the purpose of suggesting alterations in the 
Constitution would be likely to magnify their office in proposing 
many Amendments. 

There are three limitations to this power of amending the 
Constitution : First, the clause could not be altered which pro- 
hibited Congress from passing, prior to the year 
1808, a law prohibiting the importation of slaves. Limitations 
Secondly, the clause prescribing the mode of levying 
a capitation or other direct tax could not be altered prior to the 
same year, 1808. Thirdly, no State, without its consent, could 
be deprived of its equal suffrage in the Senate. 

The first two limitations had reference to slaves, and became 
inoperative in 1808. The third was for the protection of the 



232 THE CONSTITUTION. 5. I. 

smaller States: to allow them the same representation in the 
Senate as the larger States. This provision was added at the 
very close of the Convention that framed the Constitution. 
Mr. Sherman, of Connecticut, had before moved that it be 
added to the article, but Mr. Madison opposed it, and it was 
lost. Mr. Gouverneur Morris, of Pennsylvania, subsequently 
renewed the motion, and it was carried on Saturday, September 
15th. On Monday the Convention adjourned. 

This is the only provision of the Constitution which is virt- 
ually irrepealable. In 1861 an Amendment was proposed by 
two thirds of both Houses, as follows: "No 

Proposed ' 

Amendment Amendment shall be made to the Constitution 
of 1861. which will authorize or give to Congress the power 
to abolish or interfere within any State with the domestic institu- 
tions thereof, including that of persons held to labor or service 
by the laws of said State." Had this Amendment been ratified, 
it would have been in terms an irrepealable provision. Whether it 
would have been so in fact it is not necessary now to inquire, 
as the ratification did not take place. 

The British Constitution may be altered by Parliament without 
any confirmation or ratification by the people. Parliament is 
thus, says Mr. Fisher, a "Convention to amend 
Constitution tne Constitution, duly appointed, always in exist- 
ence, and always competent to entertain proposals 
for needed alterations, with full authority to decide them. * * 
It is a remarkable fact that, in conservative England, so stead- 
fast in adhering to ancient usage, the power to make changes is 
always ready to act, without question or form or delay, and the 
organic law is thus pliable and responsive to the wishes of the 
people; whilst in democratic America, innovation is guarded 
against with such jealous care that it is doubtful whether the 
means provided by law for making needed changes can ever 
be employed." * 



1 Fisher's Trial of the Constitution, page 30. 



5. I. AMENDMENTS. 233 

Events show that this language is too strong ; for, since it was 
written, in 1862, three Amendments have been made to the 
Constitution. Still it may admit of question whether the diffi- 
culties in the way of amending our organic law are not too great 
for the best good of the nation. These difficulties are forcibly 
presented in the work just quoted from. 

When an Amendment has been proposed by two thirds of 
both Houses of Congress, is the approval of the President neces- 
sary? It is only an expression of opinion by Th 
Congress that a certain Amendment is desirable, of the 

which Article Fifth contemplates, while the final President, 
decision in regard to it is to be made by other bodies. Then, 
again, a vote of two thirds is good against the President's veto. 
We should infer, therefore, that the approval of the President is 
not necessary. And the practice has been, for the most part, 
not to submit the resolutions to the President for approval. 

The First Congress proposed twelve Amendments. Nothing was said 
of the approval by the President. 1 The Amendment of 1798 — the 
Eleventh — was called in question because the President had p ct : ce 
not approved it ; but the Supreme Court decided that his of the 

approval was not necessary. 2 When the Amendment of Government. 
1804 — the Twelfth — was before the Senate, they voted — twenty-three to 
seven — that it be not submitted. That proposed at the second session of 
the Eleventh Congress was not sent to the President for his approval. The 
first instance in which an Amendment proposed by Congress was sent to 
the President for his approval, was in March, 1861. That Amendment — 
proposed as to slavery in the United States — was approved by President 
Buchanan. The Amendment of 1865 — the Thirteenth — having been sent 
to the President through inadvertence, the Senate, withouf a division, de- 
cided that it should not constitute a precedent, and the Secretary of the 
Senate was instructed not to communicate to the House of Representatives 
the notice of the approval. 

The Amendment of 1868 — the Fourteenth — was not submitted to 
President Johnson for his approval, of which he reminded Congress in a 
message and intimated that he would have vetoed it had the opportunity 



1 Annals of Congress, I, page 779. 2 3 Dallas, S78. 

A. C— 20. 



"-'.-' —: — - ' . . . irrc- ' — 

:: 

.-...:.." . -_ _ 

rLZ.rf: -re t: :.::-_:. 

~'rfzi~. rr~";G£rf.; v ~ - ::' r mrres ^- ~-~~ - ~-? 

: :-_ : 

I LZZ1 r: I 1"— Tf.'-O; 

-." . 
■ :.. . 

: __ ;. 

~,lft. OOXi 

~ :._._. : 

__1; :..--.: :'-". T 1; ' t "_ 11 : ". _ _ J. I J..., 1: xLZztZ ' rfZ 

. ^ mm iriiHUMt reo dbfte CQbb- 
--- - - " 

— __ 

~ ::..:::" " 

:.._ zz " : :.. " - ■ --.. .:.... 

:- : 



5- I. AMENDMENTS RATIFICATION. 235 

ment. In the latter case the Secretary of State, after reciting 
the facts of the ratification by various States, including New 
Jersey and Ohio, and of the subsequent rejection by these two, 
proceeds : "I do hereby certify that if the resolutions of the 
legislatures of Ohio and New Jersey, ratifying the aforesaid 
Amendment, are to be deemed as remaining of full force and 
effect, notwithstanding the subsequent resolutions of the legis- 
latures of those States, which purport to withdraw the consent 
of said States from such ratification, then the aforesaid Amend- 
ment has been ratified, etc." 

Congress was not satisfied with this conditional notice of 
adoption, and the next day adopted a concurrent resolution, de- 
claring the Fourteenth Amendment to be a part of the Consti- 
tution, and directing the Secretary of State to promulgate it as 
such. The two Houses of Congress have thus given their opin- 
ion that a State can not withdraw its consent when once 
given to a Constitutional Amendment. 

The ground of this decision may be thus stated. The Con- 
stitution declares that an Amendment duly proposed shall 
become valid when ratified by three fourths of the legislatures of 
the several States. When a legislature has voted affirmatively 
on the question of ratification, the work of the State is done so 
far as regards that Amendment. That State is counted as in 
favor of it. Had the vote been a negative one, the State could 
not have been counted as in favor ; neither could it had there 
been no vote. "Nothing but ratification forecloses the right of 
action. When ratified, all power is expended. Until ratified, 
the right to ratify remains." 1 

In the case of the Fourteenth Amendment the Secretary's 
first proclamation was on the 20th of July, and the action of 
Congress on the 21st. Georgia, which had rejected it, ratified it 
on the 2 1 st, making the requisite majority — twenty-eight in 
thirty-seven — without New Jersey and Ohio. The second 



1 Governor Bramlette to the legislature of Kentucky, quoted by Jameson, page 520. 



236 THE CONSTITUTION. 5. I. 

proclamation of the Secretary was on the 28th. The Amend- 
ment was thus ratified by the requisite number of States inde- 
pendently of the action of Congress. 1 

Another question has been discussed. In a time of rebellion, 

is a ratification of a proposed Amendment by the legislatures of 

_, .._ three fourths of the loyal States sufficient to make 

Ratification J 

byaDis- the Amendment valid? According to the views 
loyal state. gj ven j n commenting upon Sections 3 and 4 of the 
previous Article, this question must be answered affirmatively. 
If a State has forfeited her right to participate in the ordinary 
legislation of the Nation, if she is deemed unfit, because of the 
disloyalty of her people, to assist in enacting the ordinary laws, 
much less can she claim participation in the higher and more 
sacred work of changing the great organic law of the Union. 
A proposed Amendment to the Constitution is no more depend- 
ent upon the assent of a State holding such relation to the 
Nation, than upon that of a Territory. 

But did not Congress direct the recent Amendments to be sent for rati- 
fication to the disloyal as well as to the loyal States ? This was done, it is 
true ; but this does not prove that their ratifications were essential to the 
validity of the Amendments. The explanation of the seeming incon- 
sistency of Congress is to be found in the peculiar character of these 
Amendments as affecting the seceding States. They all had reference to 
the abolition of slavery, and to the status of the freedmen. Congress made 
the ratification of these Amendments by those States a condition of their 
restoration to the Union. It was for this reason that the Amendments 
were sent to them, and not because such ratification was essential to their 
validity. They were all ratified by three fourths of the loyal States, and 
would have been valid without the assent of the others. The ratification 
by the disloyal States was simply the formal approval by their legislatures 
of the principles contained in the Amendments, and was to that extent an 
evidence that they might be restored with safety to their former condition 
in the Union. 



1 For the other view, that a State may withdraw its ratification, see Cooley in Story, 
II, page 652. 



6. I. I. CONSTITUTION AND LAWS SUPREME. 237 

The Amendments — fifteen in all — will be made the subject 
of comment in subsequent pages. The years when they were 
severally ratified are as follows : 

The First Ten Amendments, 1791. 
The Eleventh Amendment, 1798. 
The Twelfth Amendment, 1804. 
The Thirteenth Amendment, 1865. 
The Fourteenth Amendment, 1868. 
The Fifteenth Amendment, 1870. 

Of the four Amendments proposed by Congress but not 
ratified by the constitutional number of States, two were pro- 
posed by the First Congress, at the same time with the ten that 
were ratified. The third was proposed at the second session of 
the Eleventh Congress. The fourth was that relating to slavery, 
proposed March 2d, 1861, at the close of the Thirty-sixth 
Congress. 

ARTICLE VI. 

Miscellaneous. 

Clause 1. — All debts contracted and engagements entered into 
before the adoption of this Constitution, shall be as valid against the 
United States under this Constitution as under the Co?ifederation. 

A similar provision was made in the Articles of Confederation. 
There was a new Constitution, but the nation was the same. 
The nation under its new Constitution would be subject to all 
the obligations assumed before this Constitution had been 
adopted. 

Clause 2. — This Constitution, and the laws of the United States 
which shall be made in pursuance thereof, and all treaties made, or 
which shall be made, under the authority of the United States, shall 
be the supreme law of the land; and the judges in every State shall 
be bound thereby, any thing in the constitution or laws of any State 
to the contrary notwithstanding. 



t:-:i : : i sunns jsl I 

7:. e langi agf b - - ~ . - ^ 

. - - - : : tut "_ - _ : 7 ' 

Sup-reir- - " - ~ ne -^ aI " : 

was bind:: : e RepL.: _ "This 

clause was im 
rnnent : 
- though in accordaii 
ould be in cor be Cons: tat 

Unit - mer n. r eld. T: 

: 
- .7 
:>n. 
The Con.-: 

: in conformity — 

tion of Congress e. Thi rn c i 

I ' ' _ T - " - " n . • - 

t Dnal C - . : 

Units : . i 

.7 Courts. As i ^m± 

ngr-t run: na 

e Constitmion wa r: 

An attem" made by South Carolina, in : . 

Union bi ecs prom;. 

E 

Clause 3. — 7 r ^cprcserUaiii r m yr, 

.. . . 

" ' 7":: . - . 



■ ■ . 

D 

:mg should sufami: .; law soouic bt nul. aiu 



6. I. 3. OATH TO SUPPORT THE CONSTITUTION. 239 

Stales, shall be bound by oath or affirmation to support this Consti- 
tution ; but no religious test shall ever be required as a qualification 
to any office or public trust under the United States. 

This oath to support the Constitution is required of all offi- 
cers, both National and State, and belonging to either of the 
three departments, executive, legislative, judicial. Qath to 
The Constitution itself (Article II, Section 2, Support the 
Clause 7) prescribes the oath to be taken by the 
President of the United States. The first statute enacted under 
the Constitution was for the purpose of carrying into effect the 
present clause. On the 1st of June, 1789, a law was passed, 
prescribing the oath as well as the time and manner of taking 
it, by the officers of the United States and of the several States. 
Objection was made to the bill on the ground that while an oath 
was obligatory upon all officers, State and National, there was 
no provision in the Constitution empowering Congress to pass a 
law enjoining the oath. To this it was replied that the general 
declarations of the Constitution could not be carried into effect 
without particular regulations adapted to the circumstances, and 
that these regulations must be made by Congress. 1 

The same objection has been made in numerous other instances, but 
the answer above given is sufficient. Were the objection to be regarded 
as valid, the wheels of government must stop. The Constitution is full 
of provisions requiring the performance of various duties, while no ex- 
press power is given to Congress to pass laws prescribing the mode of per- 
formance. But Congress has always regarded itself as possessing the 
requisite power. In the first statute enacted under the Constitution, 
Congress decided that it had this power, and the law then enacted has 
remained in force to this day. In regard to a similar clause, the Supreme 
Court held that " the end being required, it is a just and necessary impli- 
cation that the means to accomplish it are given also ; or, in other words, 
that the power flows as a necessary means to accomplish the end. * * 
The National government, in the absence of all positive provisions to the 



1 Annals of Congress, I. p. 266. 



:_: 



6.L2. 

e, "liinil. 

= : - 



I A 



-" :: 



r. : r .t.iri 



m 






77-;? ::7i ':.:? 7e-ei :i7e7 7ie :r:i-:Lii ::7i n : :: ~i= 7ns ir: 

~7_7i _ r ; 7r:i:n:e7 11 : : r.f; :i: . : - i. :- 7ie ^ijrerie . :r: =■: :ir is :: 
re7i:e7 :: ::::.ie-- ::' :::: 7 ir: Ii : :>7 Ji> ::::. lie :e:r:.~e:i e 
in: ::' 7ie :r:i-:".ii :i;'i —15 1: : .rie . ::r 7i:~e 1 erf: 15 i:-_ir 7: i iir - 
::::::: 11 i: Li:e :e":e 1 :'r.- -"- : - ^ r -^ 7:F.i7L7r:r= -ill. 1: e 
~:. :: : I : : : 7- : 

-: 7: : : e : ? -1= ~: e 11: t 

:i:::.:i:i 1 lie re:-=77:i — i: ire 1:: ::::.:.::: : i :e ": ~ "lie r : :- 

: : lie F : 7 _ 7 : I : : 1 1= r r : : 

"le-ei rei-eile-i. 



vtrsi. :7r::z:i V; i T: t 7.1.5 eve: .-:. ::.:: .7-::: :: 
:rn:r .5 ir:r.;::z:z ; :. 1 . : . - : 7 ; :-..: ...f i.-: 

":::. ±f ::ivezi:: ::' -:_::. "--- " : -- ri-r.ri ::.: r:~=rlr> 

7" : '-- ; ::ir: .-.:_:::i:::; — ;i ..: \.t 

r: 5i:i7i :e insfrrei ::':t: :it - ::i z: 
: : :. rim 1 :. : 1 :: ;::::r. ±e ?::: 



: . _- .::". - - - 7 -'-" -- : _r; I - 



7- I. RATIFICATION OF THE CONSTITUTION. 24I 



ARTICLE VII. 

Ratification of the Constitution. 

The, ratification of the Conventions of nine States shall be suffi- 
cient Jor the establishment of this Constitution between the States so 
ratifying the same. 

The Articles of Confederation provided that no alteration 
should be made in them ' ' unless such alteration be agreed to in 
a Congress of the United States, and be after- „,, . . . 

to ' The Articles 

wards confirmed by the legislature of every State." of 

This provision was entirely disregarded in adopting Confederatlon 
the present Constitution, showing that those Arti- 
cles, were not regarded as any thing more than a provisional 
Constitution. They were in the "form of a compact among 
the States," in the language of Mr. Madison. 

The people, in whose name the Declaration of Independ- 
ence was made on the 4th of July, 1776, had nothing to do 
with the Articles of Confederation. These had "no higher 
sanction than a mere legislative ratification." 1 The Convention 
had now framed a Constitution in the name of the people, by 
whom it was to be ratified. Thus the old Articles of Confeder- 
ation were practically ignored by the Convention and by the 
people of the United States. 

In the resolution of the Continental Congress, adopted February 21st, 

1787, which provided for calling the Convention, it was stipulated that 

the Convention should report to Congress and to the 

several State legislatures for action by all these bodies. _ 

° .... Convention. 

But the Convention, as seen in this Article, did not ask the 

ratification of their work, either by Congress or by the State legislatures, 
but by conventions of the people. They not only ignored the old Consti- 
tution, they also disregarded the directions of Congress as expressed in 
the resolution under which the Convention itself had been called. In 



1 Federalist, No. -J3. 
A. C— 21. 



242 THE CONSTITUTION. 7. I. 

the Convention Mr. Madison said it was essential that the direct action 
of the people should be had ; and that the new Constitution should be 
ratified in the most unexceptionable form by the supreme authority of the 
people themselves. 

The Constitution was to be binding when ratified by the con- 
ventions of nine States — two thirds of the whole number. 
This was the number required under the Confederation for de- 
claring war, making treaties, emitting bills of credit, etc. 

The Constitution was signed by the members of the Conven- 
tion September 17th, 1787, and forwarded to Congress, with a 
resolution requesting that it be transmitted to the 
Constitution several States for ratification by conventions, 
sent to Another resolution was adopted by the Conven- 

Congress. . x ' 

tion, making suggestions to Congress in regard to 
the mode of putting the Constitution into operation after it 
should be ratified. Accompanying these resolutions was a 
letter to the President of Congress by George Washington, 
President of the Convention. 

On the 28th of September Congress voted unanimously to 
transmit the Constitution to the several State legislatures, to be 
Action of Con- by tnem submitted to "Conventions of delegates 
gress and the chosen in each State by the people thereof." It 
onven ions. was ratified by Delaware December 7th ; by Penn- 
sylvania, December 12th; by New Jersey, December 18th; by 
Georgia, January 2d, 1788; by Connecticut, January 9th; by 
Massachusetts, February 7 th; by Maryland, April 28th; by 
South Carolina, May 23d; and by New Hampshire, June 21st. 
This made the requisite number of States. 

On receiving the intelligence that the ninth State had ratified 
the Constitution, Congress appointed a committee to report a 
Plan for the P^ an f° r putting the new government into opera- 
New tion. This committee reported July 14th. On 
nmen . ^ e j.,^ f September final action was taken, pro- 
viding for the election of the two Houses of Congress, and of 
a President and Vice-president, and appointing the 4th day of 



7. I. RATIFICATION OF THE CONSTITUTION. 243 

March as the day on which to commence proceedings. Before 
that day Virginia and New York had ratified the Constitution, 
making eleven States. North Carolina had deferred it, and 
Rhode Island refused to call a convention. Both, however, 
ratified it subsequently; the former, November 21st, 1789, the 
latter May 29th, 1790. It will be remembered that Rhode 
Island sent no delegate to the Convention that framed the Con- 
stitution. 

The question naturally arises, what would have been the re- 
lation of these two States to the United States had they finally 
refused to ratify the Constitution. It has been „ 

' Suppose these 

held by some that their status would have been states had 
that of foreign nations. This view is believed to Persisted m 

. their Refusal. 

be untenable. While the Constitution was under- 
going discussion in the conventions, the question as to the rela- 
tions to the others of any States that should not ratify it, was 
justly considered a very delicate one. The object of the 
friends of the Constitution was to induce every State voluntarily 
to adopt it ; and to announce, beforehand, what would be the 
consequences of a refusal, might be construed into a threat, and 
so obstruct the attainment of the desired object. 1 Of this ques- 
tion Mr. Madison said, "The flattering prospect of its being 
merely hypothetical forbids an overcurious discusssion of it. 
It is one of those cases which must be left to provide for itself. 
* * Considerations of a common interest and above all the 
remembrance of the endearing scenes which are past, and the 
anticipation of a speedy triumph over the obstacles to reunion, 
will, it is hoped, not urge in vain moderation on one side, and 
prudence on the other." 2 

After the Constitution went into operation, this question soon came be- 
fore Congress. On the 5th of June, 1789, a resolution 

• . 1 i • 1 tx r -r. • • The View of 

was introduced into the House of Representatives, urging: ^ 

r ' & t» Congress. 

the legislature of Rhode Island to call a convention. In 

July a law was passed imposing a tonnage duty of fifty cents a ton on 



1 Farrar, page 490. a Federalist, No. 43., 



244 THE CONSTITUTION. 7. I. 

foreign ships. In September this was suspended as to Rhode Island and 
North Carolina till January 15th. In February (North Carolina having 
meanwhile ratified the Constitution), at the request of Rhode Island the 
suspension was extended to April 1st. Thus the ships of the people of 
Rhode Island were regarded as ships of citizens of the United States, by 
the request of Rhode Island herself. Meanwhile the legislature had 
passed an act providing for a convention. On the 1 8th of May the Senate 
of the United States passed a bill prohibiting all commercial intercourse, 
and demanding a sum of money for her proportion of the expenses of the 
war. But before this was acted on by the House of Representatives, 
Rhode Island had made the desired ratification. Among the reasons 
urged in the House for not passing the Senate bill was this : That Rhode 
Island was about to hold a convention ; it would be pleasanter for all that 
she should come in freely ; if the bill should pass and she were to come 
in she would be like "a soldier pressed into the service, looked upon as 
unworthy to be ranged with the volunteers." 

A careful study of the proceedings in Congress will show that 
steps looking toward coercion had already been taken, and that 
had Rhode Island much longer refused to ratify the Constitu- 
tion, she would have been compelled to choose between the 
condition of a State in the Union and that of a Territory or 
district under it. Rhode Island was a part of the domain of 
the United States, and she could not be allowed to alienate it. 

"Both Rhode Island and North Carolina were component parts of the 
nation, and no practical statesman will admit for a moment that they could 
have been permitted, by a permanent refusal to take part in the new gov- 
ernment, to constitute themselves independent foreign nations in the 
heart of the Republic." 1 

AMENDMENTS. 

The Constitution makes provision for Amendments. Nine- 
teen have been proposed by Congress, and fifteen have been 
ratified by the requisite number of States. 



1 Farrar, page 491. 



Amend. I. AMENDMENTS. 245 

At the time the Constitution itself was ratified by the States, 
several of them recommended Amendments. In consequence 
of these recommendations, and to remove as far Amendments 
as possible all objections on the part of the people by the First 
to the new Constitution, the subject was brought 
up in the First Congress, and the House of Representatives 
agreed, by the requisite vote of two thirds, to seventeen 
Amendments. The Senate reduced the number to twelve. 
Ten of these were subsequently ratified by the legislatures of 
three fourths of the States. The same Congress decided that 
the Amendments should not be incorporated into 
the text of the Constitution, but be appended to it, Articles, 
as a series of distinct provisions. They have been 
therefore numbered as so many distinct Articles. They have 
the same force as the original Constitution. 

The first ten Amendments are of the nature of a bill of 
rights. Nothing of this distinctive character is contained in the 
original Constitution. A motion was made in the 
Convention for a committee to prepare such a bill, Amendments, 
but it did not pass. Five States voted for it, and 
five against it; two were absent. 1 As the States in favor were 
Northern, and those against Southern, the inference has been 
drawn by some that a bill of rights was excluded in the interest 
of slavery. 2 Others have contended that the Constitution itself 
was a bill of rights. The necessity of a distinct declaration of 
rights in the Constitution of a republican government is not so 
obvious as under a monarchy. Guaranties against hereditary 
monarchs may be needed, but the people hardly need such 
guaranties against themselves. 

Article i. — Congress shall make no law respecting an establish- 
ment of religion, or prohibiting the free exercise thereof ; or abridg- 



1 Elliot, V. page 538. " The manuscript of Madison represents the motion as neg- 
atived unanimously. The change yet remains a mystery." — Bancroft, II. page 210, 
note. 

2 Farrar, page 393. 



246 THE CONSTITUTION. Amend. I. 

ing the freedom of speech or of the press ; or the right of the people 
peaceably to assemble and to petition the government for a redress 
of grievances. 

This is a prohibition with reference to Congress; it imposes 
no restraint on the action of the States. It has been held that 
Prohibition most of the Amendments proposed by the first 
on Congress do not apply to the States, but to the 

ongress. National government alone. The several State 
constitutions contained provisions similar to those found in 
these Amendments restricting the operation of those govern- 
ments. It was therefore for the purpose of restraining the 
various departments of the general government that these ten 
Amendments were proposed. This is the view taken by the 
Supreme Court of the United States. 1 

Congress can not make any religion the established religion 
of the nation, neither can it do aught to prevent its free 
exercise. 

By ''the freedom of speech or of the press" is meant the 

right to speak and publish whatever is not in derogation of 

_ . private rights, and which does not disturb the 

Freedom of x ° 7 

Speech and of public peace or tend to subvert the government. 
the Press. There is danger, in a republican government, of 
carrying this freedom to excess, both in speech and in the press. 
We must be careful not to injure others in their rights of any 
kind, or weaken the authority of the government. Especially 
in times of insurrection or rebellion is abundant caution needed. 
Too much regard can not be paid to time and place and cir- 
cumstances. "I believe in free speech," said the Duke of 
Wellington, "but not on board a man-of-war." 

The right to assemble peaceably and petition for a redress of 
grievances is too obvious to have needed mention in the 
Constitution of a free people. 



*7 Wallace, 321. 



Amend. 2, 3, 4, 5. AMENDMENTS. 247 

Article 2. — A well-regulated militia being necessary to the security 
of a free State, the right of the people to keep and bear arms shall 
?iot be infringed. 

The militia are the citizen soldiery of the country, as dis- 
tinguished from the standing, or regular, army. The militia 
system has been allowed to fall into partial decay, showing that 
the people have little fear of need to defend themselves by force 
of arms against their government. 

Article 3. — No soldier shall, in time of peace, be quartered in 
any house without the consent of the owner, nor in time of war, 
but in a manner to be prescribed by law. 

This was a mode by which despotic rulers might oppress 
their subjects. To quarter soldiers in a house is to station them 
there for lodging and subsistence. This article recognizes the 
maxim of the common law, that a man's house is his castle. By 
owner is meant as well the occupant for the time being. 

Article 4. — The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches and 
seizures shall not be violated, and no warrants shall issue, but upon 
probable cause, supported by oath or ajfr??iation, and particulai'ly de- 
scribing the place to be searched, and the persons or things to be seized. 

This, like the previous article, is for the protection of the 
citizens. As soldiers could not be quartered upon them, so un- 
reasonable searches and seizures are prohibited, and every search 
or seizure must be made by special, and not by general, warrant. 

Article 5. — No person shall be held to answer for a capital or 
otherwise infamous crime, unless on a p?'esent??ie?it or indictment of 
a grand jwy, except in cases arising in the land or naval forces, or 
in the militia when in actual set vice in time of war or public danger ; 
nor shall any person be subject for the same offense to be twice put in 



248 THE CONSTITUTION. Amend. 6, 7, 8. 

jeopardy of life or li?nb ; nor shall be compelled in any criminal case 
to be a witness against himself; nor be deprived of life, liberty, or 
property, without due process of law ; nor shall private property be 
taken for public use without just compensation. 

Article 6. — I?i all criminal prosecutions, the accused shall enjoy 
the right to a speedy and public trial by an i??ipartial jury of the 
State and district wherein the crime shall have been committed, which 
district shall have been previously ascertained by law, and to be in- 
formed of the nature and cause of the accusation; to be co?ifro?ited 
with the witnesses against him; to have compulsory process for ob- 
taining witnesses in his favor, and to have the assistance of counsel 
for his defefise. 

Article 7. — /;/ suits at common law where the value in contro- 
versy shall exceed twenty dollars, the right of trial by jury shall be 
preserved, and no fact tried by a jury shall be otherwise re-exai?iined 
in any Court of the United States, than according to the rules of 
the common law. 

These three articles have already been considered in connec- 
tion with Article III, Section 2, Clause 3. (Pages 200-203.) 

Article 8. — Excessive bail shall not be required, nor excessive 
fines imposed, nor cruel and unusual punishments inflicted. 

It has been maintained, as already stated, that this article 
refers to the National government, and not to the State govern- 
ments; and the same has been held concerning 
^V™™! some of the articles that precede it. "The first 

on Congress. r 

ten Amendments were manifestly adopted from 
superabundant caution, as these rights were already sufficiently 
guarded by the State constitutions and bills of right." l 

While some maintain that this Amendment, as well as most of 
those which precede it apply to the State governments as well 
as the National, 2 the Courts have taken the other view. The 



1 Duer, page 344. a Farrar, page 396. 



Amend. 9, IO. AMENDMENTS. 249 

language of the Fourteenth Amendment seems to imply the 
meaning given by the Courts, as in it the. States are prohibited 
from doing what the Fifth Amendment prohibits. If the Fifth 
applies to the State governments, what need of the same 
prohibitions in the Fourteenth? 

Article 9. — The enumeration in the Constitution of certain rights 
shall not be construed to deny or disparage others retaified by the 
people. 

The very language of this article shows the impossibility of 
making any complete enumeration of rights. The inference 
might be drawn from some of the preceding articles, that what 
has not been therein prohibited, the government has the power 
to do. This article was inserted to prevent such an inference, 
by the declaration that other rights not specifically mentioned 
are not therefore to be denied. But what others ? The matter 
is left in fact just where it was before any specific rights were 
enumerated. 

It was well said by Mr. Hamilton "That bills of rights are, 
in their origin, stipulations between kings and their subjects, 
abridgments of prerogative in favor of privilege, reservations of 
rights not surrendered to the prince. * * * They have no 
application to constitutions professedly founded upon the power 
of the people, and executed by their immediate representatives 
and servants. Here, in strictness, the people surrender nothing ; 
and as they retain every thing, they have no need of particular 
reservations. * * * The truth is, that the Constitution is 
itself, in every rational sense, and to every useful purpose, a 

BILL OF RIGHTS." 1 

Article 10. — The powers not delegated to the United States by 
the Constitution, nor p7'ohibited by it to the States, are reserved to the 
States respectively, or to the people. 



1 Federalist, No. 84. 



: : Z THE CONSTITUTE. Amend. I o. 

No part of the Constitution has been so often incorrectly 
quoted as this. The word * ' expressly " has been interpolated 

xi iewo rf before the word "delegated," and many, perhaps, 

z .pressiy " believe the Constitution to speak of powers expressly 

not here. delegated to the United States. But the word is 
not in the Constitution, either in this article or in any other. It 
was in the Articles of Confederation, which was not a real con- 
stitution, but only an agreement between the States. 

A motion was made, when this Amendment was under con- 
sideration in Congress, to insert the word "expressly," but it 
was not carried. Mr. Madison objected to it, 

!_"jV_lir "because it was impossible to confine a govern- 
ment to the exercise of express powers ; there must 
necessarily be admitted powers by implication unless the Con- 
stitution descended to recount every minutia." 1 A few days 
afterward the motion was renewed, and again it was lost. 2 

This Tenth Amendment has not only been misquoted; its 
meaning has been strangely perverted. Says Dr. Cooper, 
This Amend- "Congress, under the Constitution of 1787 and 
ment Mis- its Amendments, can exercise no rights or po 
understood. k ut sucn as ^q expressly enumerated and delegated, 
or that necessarily and unavoidably flow from those that are. 
Every other right and power is reserved by and remains vested 
in the States, to be delegated or not." 3 The people seem to be 
wholly ignored by this writer. He has no idea that the general 
government has any power save as it has been delegated by the 
States. But the States, as governments, have delegated nothing. 
All the power has come from the people. They have delegated 
to the United States government, and they have delegated to 
the State governments. The term "United States," in this 
Amendment, means the United States government, and not the 
people. So "States" means the State governments. 



1 Annals of Congress I, page 790. * Ibid, page 797. 

3 S t a t u tes of South Carolina, I, page 217. 



Amend, io. AMENDMENTS. 25 1 

The meaning of the Amendment is plain. The people of the 
United States are the source of power. They have established 
a kind of double government, — that of the United 
States and that of the several States. The people ted by the 
of the United States have authorized the general People to both 
government, known as the United States, to exer- ° vernm ents. 
cise large powers, and in the same Constitution have made 
various prohibitions upon the State governments. Whatever 
there may be of the nature of governmental power, which has 
not been thus authorized to the general government, nor pro- 
hibited to the States, the people of a State may delegate to 
that State, or they may retain it undelegated. The States, as 
governmental corporations, have delegated nothing. The people 
of a State may insert in their own constitution any power not 
already inserted by the whole people in the Constitution of the 
United States, and not forbidden by the whole people to be in- 
serted in a State constitution. 

The distinction between the people and the government must 
never be lost sight of. The people make constitutions; govern- 
ments carry on the legislative, executive, and judi- 
cial departments of civil society in conformity with between the 
the Constitution thus made by the people. This is People and the 
true of the whole people and of the people of the overnmen • 
several States. The people of the United States are under no 
restrictions as to the powers with which they may clothe their 
government, except those that are imposed by the great rules of 
justice and right. But the people of a State are restricted. 
They may not confer on their State government any powers 
which the whole people have conferred on the United States 
government, nor any which the whole people have said shall 
not be exercised by the State governments. "What is not con- 
ferred by the Constitution is withheld, and retained by the State 
governments, if vested in them by their constitutions; and if 
not so vested, it remains with the people, as a part of their 
residuary sovereignty. * * It is a general principle that all 



2 5 2 THE CONSTITUTION. Amend. II, 12, 13. 

bodies politic possess all the powers incident to a corporate ca- 
pacity, without any express declaration to that effect; and one 
of those defects of the Confederation which led to its abolition, 
was its prohibiting Congress from the exercise of any power 
'not expressly delegated.' " ■ 

These ten Amendments were proposed by Congress Sep- 
tember 25th, 1789, and ratified December 15th. 1791. 

Article 11. — The judicial power of the United States shall ?wt 
be construed to extend to any suit in law or equity commented or 
prosecuted against one of the United States by citizens of another 
State, or by citizens or subjects of any foreign State. 

This Amendment, which has been considered already in con- 
nection with the Judiciary, (page 191,) was proposed March 5th, 
1794, and ratified January 8th, 1798. 

Article 12. — This Amendment, relating to the election of 
President and Vice-president, was given in full (page 155) when 
treating of the Executive Department. It was proposed De- 
cember 1 2th, 1803, and was officially declared to be ratified 
September 25th, 1804. 

Article 13, Sec. 1. — Neither Slavery nor invohuitary servitude, 
except as a punishment for crime, whereof the party shall have been 
duly convicted, shall exist within the United States, or any place 
subject to their jurisdiction. 

Sec. 2. — Congress shall have power to enforce this article by 
appropriate legislation. 

Until this Amendment was made, the word slavery was not to 
be found in the Constitution. If the idea was 

First use 

of the word there, it was expressed by a euphemism. Even 

Slavery. ^ Amendment proposed by Congress, March 2d, 

1 86 1, to which allusion has already been made, spoke of 

1 Duer, page 345. 



Amend. 13. AMENDMENTS. 253 

"persons held to service or labor." But now that the institu- 
tion was to be abolished, it was called by its own name. 

Slavery had already been abolished by act of Congress in the 
District of Columbia, April 16th, 1862, and in the Territories 
June 19th of the same year. The President had also, by proc- 
lamation, January 1st, 1863, declared all slaves in the rebel 
States free. 

The resolution for the abolition of slavery was passed by 
two thirds of the Senate, April 8th, 1864. But „ 

. Proposed in 

the requisite majority was not secured in the Congress Tan- 
House till the following winter. It was adopted uary ' l86s - 
January 31st, 1865, and transmitted to the States. The rati- 
fication by the requisite number of States was Ratified in 
announced December 18th of the same year. December. 

Mr. Secretary Seward, in his certificate that the Amendment 
had become valid as part of the Constitution of the United 
States, named twenty-seven States — three fourths 
of thirty-six — as having ratified it. Of these, eight cation 
had been in the Rebellion ; and though they had 
formed new free-State Constitutions under the proclamations of 
Presidents Lincoln and Johnson, none of them had been 
formally restored to the Union by act of Congress. There were 
then nineteen loyal States that had ratified this Amendment, and 
four others did so subsequently to the date of the certificate. 
According to the view taken in this work, that a proposed 
Amendment becomes valid when ratified by three fourths of the 
loyal States, the Thirteenth Amendment was truly a part of the 
Constitution at the date of the Secretary's certificate, nineteen 
of the twenty-five loyal States having ratified it. 

Those who think the ratifications of three fourths of the whole number 
of States requisite, maintain the legality of the ratification in this way : 
The eight insurrectionary States that ratified this Amendment had been 
reconstructed in accordance with Executive proclamations, though without 
any official recognition by Congress. But as this body had not disapproved 
of this reconstruction, and as this Amendment had been sent to these 



254 THE CONSTITUTION. Amend. 14. 

States for ratification, Congress did give a kind of passive approval of the 
executive policy of reconstruction, and so virtually recognized them as 
States. When subsequently, (March 2d, 1867), Congress declared these, 
eight with two others to be in a state of insurrection, the act had no retro- 
spective effect. x 

If the consistency of Congress is called in question in thus seeming to 
recognize these eight States by asking for, and receiving, their ratifications 
of the proposed Admendment, and subsequently refusing admission to 
their Senators and Representatives, the explanation must be left to Con- 
gress. But whether these eight were veritable States under the Constitu- 
tion or not, there can be no doubt that the Thirteenth Amendment has 
been duly ratified by three fourths of the loyal States, if those only should 
be counted, or by three fourths of the whole. 

The second clause of the Amendment seems wholly superflu- 
ous, as Congress has the same power to enforce this as any 
other provision of the Constitution. 

Article 14, Sec. 1. — All persons born or naturalized in the 
United States, and subject to the jurisdiction thereof, are citizens of 
the United States and of the State wherein they reside. No State 
shall make or enfojxe any law which shall abridge the privileges or 
immunities of citizens of the United Slates; nor shall any State de- 
prive any person of life, liberty, orJ>ivperty, without due process of 
law, nor deny to any person within its jurisdiction the equal p?v- 
tection of the laics. 

This Amendment was proposed by Congress, June 16th, 1866, 
and was declared to be a part of the Constitution, July 21st, 
1868, by a concurrent resolution of the two Houses of Congress. 
The Secretary's proclamation is dated July 28th. 

The Thirteenth Amendment abolishes slavery throughout the 
United States. According to the opinion given by Mr. Justice 
Swayne, as already quoted, the emancipation of a slave removes 
the obstacle to his citizenship. Aliens become citizens by 
naturalization; slaves, by emancipation. 



1 Skinner's fss7tes of American Politics, page 204. 



Amend. 14. AMENDMENTS. 255 

The act passed by Congress in April, 1866, known as the Civil Rights 
Bill, gave expression to this opinion. It declared all persons born in the 
United States, and not subject to any foreign power, ex- 
cluding Indians not taxed, to be citizens of the United Its Principle 

States. It conferred upon the freedmen all the rights and „. , „.,, 
r & Rights Bill. 

made them liable to all the obligations of citizens. But it 
was doubted by some whether a mere act of legislation could confer 
citizenship, and whether it did not require the authority of the Constitu- 
tion itself. To make sure the citizenship of the emancipated population, 
the principle of the Civil Rights Bill was embodied in this Fourteenth 
Amendment. 



While the first section had its origin in the purpose of the 
people to protect the colored population, the language is not re- 
stricted to them, but is applicable as well to all the Diff rent 
citizens of the country. And, as it has been main- from former 
tained that the first eight Amendments had no Amendments - 
reference to the State governments, but were restraints upon the 
general government only, this Fourteenth Amendment declares 
explicitly that -'No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of the 
United States ; nor shall any State deprive any person of life, 
liberty, or property without due process of law, nor deny to 
any person within its jurisdiction the equal protection of 
the laws." 

In April, 187 1, an act was passed to enforce the provisions of 
this Amendment. It was rendered necessary, in the judgment 
of Congress, in consequence of the treatment re- 
ceived by the colored people of certain States of 
the South, and the failure of those States to afford 
them the protection required by the Constitution. The act is 
known as the Ku Klux Bill. It provides that the failure of a 
State to protect any portion of its people against unlawful com- 
binations shall be deemed a denial of the protection guarantied 
in this Amendment. Under this act the President suspended the 
writ of habeas corpus in certain counties, and suppressed the 



Legislation 
to enforce it. 



256 THE CONSTITUTION. Amend. 1 4. 

combinations. 1 In March, 1875, an act was passed entitling all 
persons to the full and equal enjoyment of inns, public convey- 
ances, places of amusement, etc. 

Section 2. — Representatives shall be apportioned among the 
seve?'al States according to their respective numbers, counting the 
whole number of persons in each State, excluding Indians not taxed. 
But when the right to vote at any election for the choice of electors 
for President and Vice-president of the United States, Representa- 
tives in Congress, the executive and judicial officers of a State, or 
the members of the legislature thereof, is denied to any of the male 
inhabitants of such State, being twenty-one years of age and citizens 
of the United States, or in any way abridged, except for participa- 
tion in rebellion or other crime, the basis of representatio?i therein 
shall be reduced in the proportion which the number of such male 
citizens shall bear to the whole number of male citizens twenty-one 
years of age in such State. 

So long as there were slaves, three fifths of them were 
counted in order to ascertain the population of a State, and 
thus the number of Representatives to which the State was en- 
titled. But slavery having been abolished, Representatives 
must be apportioned among the States according to their re- 
spective numbers. 

The number of Representatives being in proportion to the 

whole population of the States, including those that are colored, 

if suffrage were denied to this class the former 

Inequality in ° 

Representa- Slave states would have delegations in Congress 
tion. How m uch larger, in proportion to the number of voters, 

Remedied. . . . 

than the original free States. To remedy this in- 
equality was the object of this second section. The States are 
not required to allow the blacks the right of suffrage; but if 
they do not allow it, their representation in Congress will be 
proportionably diminished. They may take their choice be- 



1 For a severe criticism of the law see Skinner, page 316. 



Amend. 14. AMENDMENTS. 257 

tween general suffrage and more Congressmen, or white suffrage 
and fewer Congressmen. 

This section implies the normal case of suffrage to be this : 
that all male citizens of twenty-one years of age may vote. 
For it provides that if any such are not allowed by The Normal 
their State to vote, the number of Representatives Case of 
in such State shall be diminished. This seems to Su rage * 
throw the moral influence of the Constitution in favor of uni- 
versal suffrage. There is nothing, however, to prevent any 
State from prescribing a qualification of intelligence or one of 
property. But as this Amendment would reduce the number 
of Representatives in a State, should any large number of 
voters be found not to possess the required qualification, the 
probability of suffrage limitation is rendered less than before. 

It has been claimed that this Amendment establishes the 
principle of woman suffrage. Does it? The first section de- 
clares who are citizens. All persons born or nat- 
urahzed m the United States, and subject to the suffrage, 
jurisdiction thereof, are citizens. They are citizens 
as soon as born. Children are citizens as well as men and 
women. Citizenship and suffrage, then, are not the same. 
This section confers civil rights, but not political. A State is 
prohibited from interfering with civil rights, but nothing is said 
of suffrage. 

The second section provides that if in any State any male 
citizens of twenty-07ie years of age are denied the rights of 
voting, the State shall suffer by a proportionate re- 
duction of the number of Representatives in Con- Not 

gress. If citizenship implied the right to vote, no Necessarily 
State could deprive a constitutional citizen of that 
right. The very supposition, in the second section, that a State 
may deny the right to vote to some whom the Constitution 
declares to be citizens, is proof that one may be a citizen and 
yet be unable to vote ; and, therefore, the conferring of citizen- 
ship is not the conferring of the right of suffrage. 
a. c— 22. 



258 THE CONSTITUTION. Amend. 14. 

Again, those citizens whom a State may not with impunity 
deprive of the right of suffrage have two requisites : they are 
The males, and of the age of twenty-one years. A State 

Restriction may prevent others from voting as much as she 
Male" citizens pl eases \ tne Constitution contains no inhibition, 
ofTwenty-one and affixes no penalty for such prevention. If the 
first section gives women the right to vote, the 
second permits a State to take the right away. Virtually the 
Constitution in this Amendment indicates the essential requisites 
for the exercise of suffrage. Voters must be male citizens of 
the age of tiventy-one. These two are placed in the same cate- 
gory, and hold precisely the same relation to suffrage. If the 
right to vote belongs by this second section to one not a male, 
by the same reasoning it belongs to one not twenty-one years 
old. The real meaning is, that as males under twenty-one are 
not expected to vote, so women are not expected to vote. 
Provision was made to enforce this section in the act of Con- 
gress passed February 2d, 1872. 

Section 3. — No person shall be a Senator or Representative in 
Congress, or elector of President and Vice-pj'esidcnt, or hold any 
office, civil or military, under the United States, or under any State, 
who, having previously taken a?i oath as a member of Congress, 
or as an officer of the United States, or as a member of any State 
legislature, or as an executive or judicial officer of any State, to sup- 
port the Constitution of the United States, shall have engaged in 
insurrection or rebellion against the same, or given aid or comfort to 
the enemies the?-eof. But Congress may, by a vote of two thirds of 
each House ; remove such disability. 

This section needs little comment. Those who as officers 
under a State or the Nation had sworn to support the Constitu- 
tion of the United States, and then engaged in rebellion, are 
precluded from again holding office except Congress, by a vote 
of two thirds, shall remove the disability. 



Amend. 14. AMENDMENTS. 259 

Article II, Section 2, of the Constitution gives the President power to 
grant reprieves and pardons for offenses against the United States, except 
in cases of impeachment. It is doubted whether cases of The 

amnesty were intended to be included. Early in the war, Pardoning 
July 17th, 1862, Congress authorized the President to issue Power of the 
proclamations of amnesty. This was done by President 
Lincoln and by President Johnson. In January, 1867, the authority was 
withdrawn by Congress, but President Johnson nevertheless issued other 
proclamations even after the ratification of this Amendment. Whether 
he had the authority to issue such proclamations after the repeal of the 
provision referred to, is doubtful ; but certainly he had no power, after 
the adoption of this Amendment, to absolve from their guilt any offenders 
included under its provisions. As the second section of Article II of the 
Constitution gave the pardoning power to the President, so this third sec- 
tion of the Fourteenth Amendment repealed that power so far as applica- 
ble to the classes named therein. 

The disabilities imposed by this section had been removed 
from many persons mentioned by name in the several acts, when 
in May, 1872, Congress passed an act remov- Removal 
ing such disabilities from all except Senators and of 

Representatives of the Thirty-sixth and Thirty- Disabilities - 
seventh Congresses; officers in the judicial, military, and naval 
service of the United States ; heads of departments and foreign 
ministers of the United States. The disabilities from most of 
these have probably now been removed by private acts. 

Section 4. — The validity of the public debt of the United States, 
authorized by law, including debts incurred for payment of pensions 
and bounties for services in suppressing insurrection or rebellion, 
shall not be questioned. But neither the United States nor any 
State shall assume or pay any debt or obligation incurred in aid of 
insurrection or rebellion against the Uiited States, or any claim for 
the loss or emancipation of any slave ; but all such debts, obligations, 
and claims shall be held illegal and void. 

This section had immediate reference to the existing public 
debt, which was incurred in suppressing the rebellion ; but the 



260 THE CONSTITUTION. Amend. 1 5. 

language is general, and therefore applicable to all public debts. 

The prohibition as to the payment by the United States or any 

State of any part of a debt incurred in aid of in- 

The • • • 

Public Debt surrection or rebellion against the United States, 
is also general. The measure is one of obvious 
security, as under the reconstruction laws many of those for- 
merly in the rebellion have been admitted again to the State 
and National legislatures. It is better for all to have the ques- 
tion settled by the adoption of a clause in the organic law 
itself. 

Section 5. — The Congress shall have power to enforce, by ap- 
propriate legislation, the provisions of this article. 

The same remark may be made of this as of the correspond- 
ing section in the Thirteenth Amendment; it seems to be un- 
necessary. Whatever the Constitution requires, Congress has 
the power to carry out by appropriate legislation, whether there 
be specific provision for it or not. 

Article 15, Sec. 1. — The right of citizens of the United States 
to vote shall not be denied or abridged by the United States, or by any 
State, on account of race, color, or previous condition of servitude. 

Sec. 2. — The Congress shall have power to enforce this article 
by appropriate legislation. 

The second section of the Fourteenth Amendment was in- 
tended to secure suffrage to the freedmen. This was to be 
done indirectly, however. The right of suffrage 

Object of this r , ,, , ■■ , 

Amendment. was not conferred upon the colored race by a 
direct affirmative grant, but the States which 
should withhold it were to have their number of Representa- 
tives in Congress reduced in proportion. The measure was 
not attended with the success which was anticipated. The en- 
franchisement of the colored race was deemed indispensable to 
their own safety and to the prosperity of the nation ; and the 



Amend. 15. AMENDMENTS. 26 1 

first plan to secure it having failed, a second was proposed. 
Hence this Fifteenth Amendment. It declares expressly that 
the right of citizens to vote shall not be denied or abridged on 
account of race, color, or previous condition of servitude. 
The Fourteenth Amendment declared the colored race to be 
citizens, and thus gave them all civil rights ; and the Fifteenth 
secures them suffrage, and thus bestows upon them political 
rights. 

This article does not, of course, imply that all citizens possess 
the right to vote. We have seen that the Fourteenth Amend- 
ment declares children, as well as adults, to be 
citizens, showing that to make the right of suffrage Applicable, 
co-extensive with citizenship would be simply ab- 
surd. The meaning is that the right to vote of those citizens 
who enjoy the right, to wit, males of twenty-one years, shall 
not be denied on account of race, color, or previous condition 
of servitude. It may not be denied for any of these three 
causes, but it may for any other. The freedmen are put upon 
an equality with others as to the right of suffrage. If an edu- 
cational qualification is required, it will apply to the whites as 
well. So with a property qualification. Virtually, this Amend- 
ment establishes universal suffrage ; and while some great evils 
were in this way prevented, the extension of the elective fran- 
chise to a large number of ignorant persons can not be viewed 
but with deep anxiety and with grave foreboding. Weighty obli- 
gations rest on all intelligent citizens to extend to this class of 
our population the opportunities of education that they may 
vote intelligently. 

The right to vote implies the right to be voted for. 

In May, 1870, Congress enacted a stringent law "to enforce 
the right of citizens of the United States to vote." It was 
amended in February, 187 1. 

This Fifteenth Amendment was proposed by Congress, Feb- 
ruary 27th, 1869, ancl declared to be duly ratified March 30th, 
1870. 



262 THE CONSTITUTION. 



AMENDMENTS PROPOSED BUT NOT RATIFIED. 

Besides the fifteen Amendments which have become a part 
of the Constitution, four have been proposed by Congress but 
not ratified by the legislatures of three fourths of the States. 
Two of these were proposed by the First Congress. Twelve 
were proposed, of which the last ten were ratified. The other 
two were as follows : 

1. After the first enumeration required by the first article of 
the Constitution, there shall be one Representative for every 

q , - c nf thirtv thousand, until the number shall amount to 

X33.S15 OI ' ' 

Representa- one hundred, after which the proportion shall be 
so regulated by Congress that there shall be not 
less than one hundred Representatives, nor less than one Rep- 
resentative for every forty thousand persons until the number 
of Representatives shall amount to two hundred; after which 
the proportion shall be so regulated by Congress that there shall 
not be less than two hundred Representatives nor more than 
one Representative for every fifty thousand persons. 

2. No law varying the compensation for the services of the 

Senators and Representatives shall take effect until 
congressmen. an election of Representatives shall have inter- 
vened. 
The following Amendment was proposed by the Eleventh 
Congress at their second session : 

3. If any citizen of the United States shall accept, claim, re- 
ceive, or retain any title of nobility or honor, or shall, without 

the consent of Congress, accept and retain any 

Presents etc • 

to citizens. ' P resent > pension, office, or emolument of any kind 

whatever, from any emperor, king, prince, or 

foreign power, such person shall cease to be a citizen of the 

United States, and shall be incapable of holding any office of 

trust or profit under them or either of them. 



AMENDMENTS NOT RATIFIED. 263 

The fourth of the Amendments proposed but not ratified was 
at the close of the Thirty-sixth Congress, March 2d, 1861. It 
has been quoted on a former page. 

4. No Amendment shall be made to the Constitution which 
will authorize or give to Congress the power to 
abolish or interfere, within any State, with the ° slavery!" ° 
domestic institutions thereof, including that of per- 
sons held to labor or service by the laws of said State. 



CHAPTER V. 

~~ 7 -.7:7: : t: : : :? t~ez 7: 17:7.1: :> it 7::~" 

~ I 17.-1 7 7 .717- 



T 



.1 : it 7: 111 7 :ii7 ::: : _: iLiizz >tii 1 it'.tzizz 
: 7 : 7 : : t 7 : 7. t 7. 77. t :":": 77::: :. 7. 7 N t ~ H 1 n 7 -~ 7:1 
::::7::: it77 ::.: : ; 1 : :' Ji7t 
" .7..:. ::: ~: ; : :::::: : 7 ::: 7 7 :i" 7.7 1 :::: ; ::.:::: 
[5th, and signed by the members on Monday d 

I" 777 _~ lUr _ 1 71" 17: "•;:; ;_; ;v ::.: T 

— : : :' ::.- -.:.:--. it.tzi.ts :: : 77 !"t 7 
Messrs. Tensing and Yates — had withdrawn whf 

-i : ::t— 7 7.7"' I : i::::_7:: 77 777f:t; 1 :: rev-Vj: 
::' 7 :7." 7t: : : 7. -jit _: if 77777:: 77 — : 5 :: 7: ': 
: :::::.:. t-t~ti - .-7- 7:' : ; :::..:: 7 7-1: 7 :.: 
7.: :i :i_i 7: ::::.7 :: 77.7 :::i: ""777. 77 -i ::;:.. 7 
'.::;'. 77^7::?: 1.5 " t :i 77.7 : 777 7 itit-shi: 



: : : 7t _ : i~717: : 1 _ it ::_: ~ ; :~it : : mi 

_":: .' r 7.7. :::. " :i7 17771:1::..: 17:::.: : :" :7: 7:::r: 
77. : :i :.::t:7 . : : ; : - 1: : t : 7.1 lie yt : : : : : 

I-5-. 1771 ::" lit izirie-iir-ir ::' 71 7"::::: :i 

. ■■■ t .771 _ 77 ■- ~ : ; — .7 7 7 7 . 1 — 7 7 . 7 t 7 t . ... . . : : . .7 

177177 ... It .:.:7::: -77-r7.: : 7 7. 7 7 1 tlltZZ 

Randolph and Mason from Virginia and Mr. Gerry fin 
sachnsetfis. New York was not officially present in t 

7-.-. 



THE MODE OF RATIFICATION. 265 

vention, but the instrument bears the signature of Alexander 
Hamilton from that State, who took a most prominent part in 
its deliberations. 

The following resolutions, adopted by the Convention, were 
transmitted to Congress, with a copy of the Constitution, 
accompanied by a letter from the President : 

"In Convention, Monday, September 17th, 1787. 

"Resolved, That the preceding Constitution be laid before the 
United States in Congress assembled, and that it is the opinion 
of this Convention that it should afterwards be 
submitted to a convention of delegates, chosen in ~° ," * n 

o ' Conventions. 

each State by the people thereof, under the recom- 
mendation of its legislature, for their assent and ratification; 
and that each convention, assenting to and ratifying the same, 
should give notice thereof to the United States in Congress 
assembled. 

' ' Resolved, That it is the opinion of this Convention that as 
soon as the conventions of nine States shall have ratified this 
Constitution, the United States in Congress assem- 
bled should fix a day on which electors should be under *\\ % 
appointed by the States which shall have ratified 
the same, and a day on which the electors should assemble to 
vote for the President, and the time and place for commencing 
proceedings under this Constitution. That after such publica- 
tion the electors should be appointed and the Senators and 
Representatives elected ; that the electors should meet on the 
day fixed for the election of the President, and should transmit 
their votes, certified, signed, sealed, and directed, as the Con- 
stitution requires, to the Secretary of the United States in 
Congress assembled; that the Senators and Representatives 
should convene at the time and place assigned ; that the Sena- 
tors should appoint a President of the Senate for the sole pur- 
pose of receiving, opening, and counting the votes for Presi- 
dent ; and that, after he shall be chosen, the Congress, together 

A. C.--23. 



266 THE CONSTITUTION. 

with the President, should without delay proceed to execute 
this Constitution. 

"By the unanimous order of the Convention, 

1 ' George Washington, President. 
"William Jackson, Secretary." 

The resolution of Congress, adopted February 21st, 1787, 
recommending that a Convention should be held for the pur- 
pose of revising the Articles of Confederation, 
convention contemplated that those alterations, after being 
agreed to by Congress, should be confirmed by 
the States. But the Convention, in the resolutions transmitted 
to Congress with a copy of the Constitution, proposed that this 
confirmation should not be by the States, i. e., by the legisla- 
tures of the States, but that the instrument should "be sub- 
mitted to a convention of delegates chosen in each State by the 
people thereof." 

The Articles of Confederation had been adopted by Congress and 
ratified by the legislatures of the several States. They had never been 
submitted to the people. Congress expected that the alterations would 
be submitted to the legislatures and not to the people. The Convention 
thought, however, that if the adoption of the new Constitution were to 
be referred to the State legislatures it would not rest on the direct 
authority of the people. 

The Articles of Confederation could not be amended without 
the assent of all the States ; but the Constitution was tc go into 
effect when nine of the thirteen should have ratified 
System would **• The Convention, therefore, "had prepared a 
abolish the system of government that would not merely alter, 
but would abolish and supersede the Confeder- 
ation ; and they had determined to obtain, what they regarded 
as a legitimate authority for this purpose, the consent of the 
people of the States, by whose will the State governments 



1 



THE ACTION OF CONGRESS. 267 

existed." 1 The Articles of Confederation were the work of 
Congress and the State governments. The people had no par- 
ticipation in them. They were not in the name of The 
the people. But the Constitution framed by the Constitution 
Convention of 1787 was in the name of the people; Articies^f 
and, should it go into operation, would derive its Confederation, 
validity from the people themselves. Prior to the adoption of 
the present Constitution, the United States could hardly be said 
to have a Constitution. They had a government, and the re- 
lation of the States to the Nation was virtually the same as now ; 
but their respective duties had not been definitely stated, and 
there was no little friction in the working of the governmental 
machinery. The members of the Convention had great hopes 
that the new Constitution would be found to remedy these evils, 
and in this they were not disappointed. 

Congress having received the report of the Convention, 
adopted (September 28th,) the following resolution : "Resolved, 
unanimously, that the said report, with the resolu- 
tions and letter accompanying the same, be trans- congress 
mitted to the several legislatures, in order to be 
submitted to a convention of delegates chosen in each State by 
the people thereof, in conformity to the resolves of the Con- 
vention made and provided in that case." 

Congress, it will be seen, merely transmits the Constitution to the State 
legislatures, without either approval or disapproval. This was what the 
Convention had requested, though a vote of approval would have facili- 
tated its adoption in the conventions of the States. But some opposition 
was made in Congress to the Constitution, and to obtain unanimity it was 
necessary, says Mr. Madison, to couch the resolution in very moderate 
terms. It was first contended that Congress could not properly give any 
positive countenance to a measure which had for its object the subversion 
of the Constitution under which they acted. This objection having been 
answered, an effort was made to amend the Constitution by inserting a 
bill of rights, trial by jury in civil cases, etc. Had this effort been suc- 



1 Curtis, II, page 481. 



268 THE CONSTITUTION". 

:'d, it would, without doubt, have defeated the Constitution, as two 
c iments would have been placed before the people for their ratification. 

The Convention had kept their proceedings secret, and there 
was consequently great anxiety to know the character of the 
D new Constitution. Singular rumors were circu- 

as to the lated, among which was one that a system of mon- 
Constitution. arc bi C al government had been framed, and the 
monarch designated in the person of one of the sons of George 
III. But two days after the Convention adjourned, the new 
Constitution was published in the newspapers of Philadelphia, 
thus dispelling all doubt in regard to it. 

"It met every-where with warm friends and warm opponents/' Mr. 
Curtis classifies its advocates thus : first, a large body who regarded it as the 
admirable system which it proved to be when put into 
Its Friends operation ; second, those who believed it to be the best at- 
O one tamable government that could be adopted by the people 

of the United States, overlooking defects which they ac- 
knowledged, or trusting to the power of amendment which it contained ; 
and, third, the mercantile and manufacturing classes who regarded its 
commercial and revenue powers with great favor. "Its adversaries," he 
" were those who had always opposed any enlargement of the federal 
ttl; those whose consequence as politicians would be diminished by 
the establishment of a government able to attract into its service the 
highest classes of talent and character, and presenting a service distinct 
from that of the States ; those who conscientiously believed its provisions 
and powers dangerous to the rights of the States and to public liberty ; 
and, finally, those who were opposed to any government, whether State 
or national or federal, that would have vigor and energy enough to protect 
the rights of property, to prevent schemes of plunder in the form of paper 
money, and to bring about the discharge of pubhc and private debts." 

The legislatures of all the States, except Rhode Island, called 
conventions of the people to act upon the Constitution, though 
in some of them there was strong opposition. Thus in New 
York the resolutions for a convention were passed by majorities 
of only three in the Senate and two in the House; and this on 



ITS RATIFICATION BY THE STATES. 269 

the i st of February, 1788, when five States had already ratified 
the Constitution. 

The first ratification was by Delaware, on the 7th of De- 
cember, 1787. It was done unanimously, and without the 
recommendation of any amendment. 

Pennsylvania was the second to ratify. This was _, . 

J J Ratifications 

done, without declaration or recommendation, on by the 
the 1 2th of December, by a vote of 46 to 23. states. 

New Jersey ratified the Constitution December 18th. Her 
vote was unanimous. 

The next was Georgia, which was also unanimous in her ratifi- 
cation. It was done January 2d, 1788. 

Connecticut followed on the 9th of January, ratifying without 
any declaration, and without recommendations, by a vote of 
128 to 40. 

The convention of Massachusetts commenced its sessions on 
the 9th of January, the day of the ratification by Connecticut, 
and continued in session till the 7th of February. The discus- 
sion was warm and able, and the Constitution was ratified at 
last by a majority of only 19 in a Convention of 355. Nine 
amendments were recommended, two or three of which were 
included in the amendments proposed by the First Congress. 

Maryland passed a vote of ratification April 28th. The vote 
stood 63 to 11, and there were no amendments or resolutions. 

South Carolina ratified the Constitution May 23d, 1788, by a 
vote of 149 to 73. Several amendments were recommended. 

The ninth State was New Hampshire. Her ratification was 
made June 21st, 1788, by a majority of 11. The convention 
had assembled in February, but after a warm dis- „ 

"* New Hamp- 

cussion had adjourned to the 18th of June. Three shire the 
conventions were in session at the same time : that Ninth state. 
of Virginia having convened June 2d, and that of New York 
on the 17th. New Hampshire accompanied her ratification 
with twelve amendments, of which three were subsequently em- 
bodied in the amendments proposed by Congress. 



270 THE CONSTITUTION. 

As the Constitution was to become binding when nine States 
had ratified it. New Hampshire completed the number. As 
soon as the intelligence of her action reached Congress, a com- 
mittee was appointed to report an act for putting the Constitu- 
tion into operation. 

The tenth State in the order of ratification was Virginia. She 
ratified on the 25th of June, by a vote of 89 to 79. l It should 
be stated that this vote was taken before the con- 
the^Tenth vention knew of the action of New Hampshire. 
The members of the Virginia Convention supposed 
that by her ratification she would make the number complete. 
The convention proposed many amendments, and accompanied 
their ratification with a declaration of rights. ' ' We, the dele- 
gates of the people of Virginia, * * * do, in the name 
and in behalf of the people of Virginia, declare and make known 
that the powers granted under the Constitution, being derived 
from the people of the United States, may be resumed by them 
whenever they shall be perverted to their injury or op- 
pression, etc." 

This shows very clearly the opinion of the majority of the 
members of the convention as to the source of the powers 
granted under the Constitution. These powers came, not from 
the States, but from the people of the United States. 

Xew York was the eleventh State to ratify the Constitution. 
The opposition was very strong, and it was for some time doubtful 
whether the vote of ratification could be carried, 
the Eleventh ^ t wu ^ be remembered that two of the three dele- 
gates sent by Xew York to the Convention which 
framed the Constitution, left the Convention when they became 
satisfied that a new instrument would be framed. These two 
ce.r^t: — Messrs. Lansing and Ya:es — 3.5 wel] as Mr. Hamil- 
ton, were in the State convention. A form of ratification was 



1 The date usually given is June 26th. The vote of ratification was on the 25th ; an 
engrossed form of the ratification was read and signed by the president on the 26th. 
Elliot, III, page 656. 



ITS RATIFICATION BY THE STATES. 27 I 

proposed which provided that the act of ratification was made 
" on condition " that Congress would not exercise certain powers 
till a general Convention should be called for proposing amend- 
ments. The words "on condition" were finally stricken out, 
and the words "in full confidence" substituted; though the 
vote was 31 to 29. In this form the ratification was voted, 30 
to 27, on the 26th of July. 

A long declaration of rights was made, and a great number 
of amendments proposed. 

The convention of North Carolina commenced its session July 
21st, but adjourned on the second of August, after passing a 
resolution that a declaration of rights and certain 

Action of 

amendments ought to be laid before Congress and North 

a convention which might be called for amending Carolina, 
the Constitution, previous to its ratification by North Carolina. 
This was adopted by 184 to 84. More than a year later another 
convention was held, and, on the 21st of November, 1789, 
North Carolina ratified the Constitution by a majority of 11. 
This was more than eight months after the Constitution had gone 
into operation. This ratification was accompanied with a bill of 
rights and many amendments, mostly like those of Virginia. It 
should be noted that delegates from North Carolina, and one of 
those from Rhode Island, continued in Congress to the last, and 
delegates from both States voted on questions pertaining to the 
Constitution as late as August 6th, 1788. 

Rhode Island sent no delegates to the Convention which 
framed the Constitution. When that instrument was received 
from Congress, the legislature caused it to be pub- „ .„ 

b , ' b ^ Ratification 

lished and circulated among the people, but did by 

not call a convention to ratify it. Instead of this Rhode island, 

May, 1790. 

they referred the adoption of it to the people in 
their town meetings for the purpose of having it rejected. 
There were but four thousand legal voters in the State, and of 
the small minority who favored the adoption of the Constitution 
few voted. The votes against it were 2,708; those in favor, 



;-; THE C»3ff5TTTTJJTIOX. 

7 is in March, 1788. After 23 interval of more 

than two years Rhode Island called a convention, and the 
Cbnstitotion was ratified on die 29th of May, 1790. 

Tie :2ni 221:1 : :' Nt» H v - :r 212 2 ii 

::i-: xived by Congress Jory 2d, 17 S S. A committee 

~i5 izz-i—'.zi :i -ja - :.-. 227 :: - .: :.:.z :;.- :: :_s ru- 
ms and report pn iing the Constitution into 
operation. The 2 member who voted against die appoint- 
ment of a committee was Mr. Yates, of New York, who 
left the Constitutional Convention and voted against the 
ratification of the Constitution in the convention of New 



:e~:-tr. -'iei 12 

2 5 12V 22 ~ 12121V 

>tvtrii 5 12:25. - ■■': 
ve :2i2r : :.\~ 5.2: 



:: 



_:i ::' Mir-:"- en: 

. :2 2215 22 V 22 r 



"22I2 22 ±2 
'. 25:121: 2 

: 2 inn 12 e 



ITS SUCCESS. 273 

George Washington was found to have been elected President 
by a unanimous vote (69) ; and John Adams was declared Vice- 
president, as having the next highest number (34), Washington 
though it was less than a majority. Mr. Adams the First 
took the chair as President of the Senate April resident. 
21st, and General Washington was inaugurated President April 
30th, 1789, in the city of New York. 

Thus quietly the government went into operation under the 
new Constitution. It was extraordinary that a President should 
have been unanimously elected when we remem- 
ber the great opposition which the Constitution R e -eiected 
encountered, and that the new President had pre- 
sided over the Convention which framed that instrument. At 
the expiration of his first term, President Washington was again 
elected by a unanimous vote, fifteen States now voting while 
before there had been but ten. 1 Vermont and Kentucky had 
been admitted into the Union before the second presidential 
election. Since the administration of President Washington, 
no President has received the votes of all the electors. 

Those who had opposed the Constitution in the State conven- 
tions gave in their acquiescence when they found that the people 
had voted to ratify it. The dangers which had been feared 
were found to be imaginary. The Constitution has proved 
itself to be just what the Nation needed. 2 Once only has there 
been a determined effort to overthrow it. To effect this, an 
interpretation was placed upon the Constitution the opposite of 
that attributed to it by those who opposed its ratification in 
1787 and 1788. Patrick Henry, and those who agreed with 
him, would not ratify the Constitution because it was the Con- 



1 At the time of the first election, North Carolina and Rhode Island had not ratified 
the Constitution, and the two Houses of the New York legislature disagreed as to the 
mode of choosing electors. 

2 Sir Henry Sumner Maine, writing in 1885, speaks of the signal success of the Con- 
stitution of the United States, and affirms it to be "much the most important political 
instrument of modern times." — Popular Government, page 196. 



:-_ t~zi :: . " f 7": 7VT : : . 

stitution of a Nation and not a league of States. In 1S61 the 
people of a portion of the i.la.Tmec ".: :;::: ::' : 

secession, "r r : : .. . : ? ; :.:. - affirmed, th ; z : . ' - rz .: f :. : t< 
league. Had it been so understood when the adoption of die 
Constitution was under discussion in the ?~:c ::z/ =--•:■-• 
: - r who were the m: :: :::::_ - : 

have been the most eager to adopt it. 



CHAPTER VI. 

The Admission of New States — The Territorial Governments. 

AT the birth of the Nation, July 4th, 1776, there were 
thirteen States; there are now, 1887, thirty-eight. The 
Constitution went into operation when only eleven had ratified 
it; but the other two gave their ratifications shortly after — 
North Carolina, November 21st of the same year; and Rhode 
Island on the 29th of May, 1790. The relation of these two 
to the others, if they had refused to ratify, has been discussed 
in a former chapter (page 243). 

Congress has admitted twenty-five new States into the Union. 
Of these, twelve were formed from territory belonging to the 
United States or to individual States when the Constitution 
was adopted, and eight of the others came from the Louisiana 
purchase. 

The first State admitted into the Union after the adoption of 
the Constitution was Vermont. The people of Vermont, in 
January, 1777, proclaimed themselves a free and 
independent State. In December of that year the MarchT^'gi 
same convention which had proclaimed the inde- 
pendence of the State, adopted and put into operation a con- 
stitution. But as the territory was claimed by New York oppo- 
sition was made by that State to her admission into the Union. 
It was not till the year after the Constitution of the United 
States went into operation that New York, by her com- 
missioner, consented to relinquish her claim to soil with Consent 
and jurisdiction, Vermont paying the sum of thirty of 

thousand dollars. The formal consent of New 
York was given March 6th, 1790, by her legislature. Appli- 

(275) 



276 THE NEW STATES. 

cation was made by Vermont for admission February 9th, 1791, 
and an act, to take effect on the 4th of March, was approved 
February 18th. Vermont, the first of the new States, thus 
became an integral part of the Union March 4th, 1791. She 
came in with the constitution which her convention had adopted 
fourteen years before, and which has remained substantially the 
same to the present time. 

Kentucky was the next new State; it was admitted June 1st, 

1792. As Vermont was formed from a part of New York, so 

Kentucky was formed from a part of Virginia. 

June 1, 1792, The question of forming a new State from that 

from portion of Virginia known as the District of Ken- 

Virginia. r ° 

tucky, began to be agitated as early as 1784. A 
number of conventions were held, but no results followed till 
December 18th, 1789, when Virginia passed an act giving her 
consent to a separation, to take place June 1st, 1792. On the 
4th of February, 1791, Congress, in answer to a petition from 
a convention in Kentucky, consented to her admission, which 
was to take place June 1st, 1792, according to the agreement 
with Virginia. 

The third State admitted into the Union was Tennessee, 
June 1 st, 1796. This was originally a part of North Carolina. 
Like Vermont, Tennessee had early in the war 
Tune^iS w ^ tn Great Britain proclaimed herself independent, 
and she had set up a government separate from 
North Carolina. She called herself the State of Frankland (or 
Franklin), elected officers, and attempted to defend herself by 
force of arms. The attempt was, however, unsuccessful. 

On the 25th of February, 1790, North Carolina made a ces- 
sion to the United States of her claim to the territory lying 
„ - u between the mountains and the Mississippi, with 

Cession by * * * 

North this among other conditions : ' ' That the territory 

Carolina. go ce( } e d sria n be ^{^ out anQ i formed into a State 

or States, containing a suitable extent of territory, the inhab- 
itants of which shall enjoy all the privileges, benefits, and 



TENNESSEE, OHIO. 277 

advantages set forth in the ordinance of the late Congress for the 
government of the western territory of the United States." 

On the 2d of April of the same year, Congress accepted the 
cession, and on the 26th of May passed an act organizing the 
' ' Territory of the United States south of the river organized 
Ohio." In July, 1795, the territorial legislature as a 

ordered a census to be taken to ascertain whether 
the population amounted to 60,000, this number entitling the 
Territory to admission into the Union as a State by the terms 
of the ordinance of 1787 and the deed of cession. The census 
showing a sufficient population, a convention was called to form 
a State constitution. This body met in January, 1796, and on 
the 6th of February adopted a constitution. A copy was for- 
warded to the President of the United States in Admitted 
the same month, with a notification that on the as a 

28th of March the territorial government would 
cease. The peculiar action of Tennessee in demanding rather 
than asking admission into the Union is to be explained by her 
understanding of the ordinance of 1787. A very earnest 
debate followed, but finally an act for admission was passed ; it 
was approved June 1st. Tennessee was the first State admitted 
which had been previously governed as a Territory. 1 

There had been thus three new States admitted into the Union 
before the close of the century : Vermont, Kentucky, and 
Tennessee. The first in this century was Ohio, 0hio 

admitted February 19th, 1803; which, though the Admitted, 
seventeenth at the time of her admission, has long e ' I9 ' : ° 3 ' 
held the third rank in population. The old States had ceded to 
the United States all their claims of jurisdiction, and, with a few 



1 The Census returns and some other official publications make Kentucky a part of 
the "Territory of the U. S. south of the river Ohio,'' and the same error is found in 
various other works. This Territory, organized May 26th, 1790, was limited to that 
ceded by North Carolina and a strip by South Carolina. Kentucky was regarded as a 
part of Virginia, and as such was admitted into the Union. Virginia had given her 
consent to the admission of Kentucky before North Carolina had made her cession, 
and before the Territory south of the Ohio had been organized. 



278 THE NEW STATES. 

exceptions, of soil, to territory lying north-west of the Ohio 

River. On the 13th of July, 1787, while the Convention was 

The framing the Constitution at Philadelphia, Congress 

Ordinance at New York passed an "Ordinance for the gov- 
ernment of the territory of the United States 
north-west of the River Ohio." This was the most important 
act performed by Congress under the Articles of Confederation. 
"Never, probably, in the history of the world, did a measure 
of legislation so accurately fulfill, and yet so mightily exceed, 
the anticipations of the legislators." 1 

Its object was declared to be to "extend the fundamental 
principles of civil and religious liberty which form the basis 
whereon these republics, their laws and constitutions are 
erected ; to fix and establish those principles as the basis of all 
laws, constitutions, and governments which forever hereafter 
shall be formed in the said Territory." (The ordinance in full 
may be found in the Appendix.) 2 

The Territory embraced all the land which belonged to the 
United States north-west of the Ohio River, and all to which 
The Great Britain had any claim at the time of the 

North-west treaty of 1783. It extended from Pennsylvania 
to the Mississippi, and from the Ohio to the great 
lakes. The ordinance provided for its division into three 
States, or five if the people should prefer. Five States have 
been organized : Ohio, Indiana, Illinois, Michigan, and Wis- 
consin. The territorial government was organized soon after 
the passage of the ordinance. The government was vested in 
a Governor and Judges; but when there should be 5,000 free 



1 Chase's Statutes of Ohio. 

2 This ordinance was enacted immediately after an association of Revolutionary 
officers had proposed to Congress to buy a large tract of land on the Ohio for the pur- 
pose of settlement. These men wanted the protection of a good government, and 
this ordinance was framed in accordance with their wishes. Some of its best pro- 
visions are known to have been incorporated at the suggestion of the agent of the 
association, Rev. Manasseh Cutler, of Massachusetts. The settlement was made at 
Marietta, April 7th, 1788, under the leadership of General Rufus Putnam. 



OHIO, LOUISIANA. 279 

males of full age, a territorial legislature might be elected. 
The first Governor was General Arthur St. Clair, who was 
President of Congress when elected. He entered upon his 
duties in July, 1788, at Marietta. The first territorial legislature 
met at Cincinnati September 16th, 1799. 

In May, 1800, the Territory was divided; the western portion 
being called the Territory of Indiana, of which W. H. Harrison, 
afterward' President, was made Governor. April 30th, 1802, 
Congress passed an act to enable the people of the eastern divi- 
sion to form a constitution and State government. The conven- 
tion met at Chillicothe, November 1st, framed a constitution, 
and adjourned on the 29th. The constitution was not submitted 
to the people. On the 19th of February, 1803, Congress 
passed an act making Ohio a judicial district of the United 
States, and thus constituted it a State. 1 

Louisiana came next into the Union, April 30th, 181 2. 
About the time Ohio was admitted, February 19th, 1803, a treaty 
was made with France, in which that power ceded 

r Louisiana, 

to the United States the vast territory known then April 30th, 
as Louisiana, lying between the Mississippi River l8l2# 

and the Rocky Mountains. By this purchase the area of the 
United States was more than doubled. From it the following 
States have been formed: Louisiana, Arkansas, Missouri, 
Kansas, Nebraska, Iowa, most of Minnesota, (the rest being 
from the North-west Territory), and a large part of Colorado. 



1 The day of adjournment of the convention, November 29th, 1802, is sometimes 
given as the date of admission, because of the language of the enabling act — "the 
said State, when formed, shall be admitted into the Union." But the same words 
are in the enabling acts for Indiana, Illinois, and most of the States admitted since, 
yet for each of them there was a distinct act of admission. There is no reason why 
an enabling act and the framing of a constitution should be sufficient for Ohio and 
not sufficient for all other States. In January, 1803, President Jefferson nominated 
to the Senate persons for public office at Marietta in "the North-west Territory." 
The President of the U. S. regarded this region as then a Territory and not a State. 
March 1st, just after the act of February 19th, constituting the State of Ohio, he 
nominated Charles W. Byrd for U. S. District Judge in "the State of Ohio.'' 



2So THE NEW STATES. 

A temporary government was provided the year of the treaty, 

1803, and March 26th. 1S04, Congress divided the region into 

two territories — the Territory of Orleans and the 

e emtory restrict f Louisiana. March 2d. 180^, an act 

01 Urleans. 7 «-" 

was passed authorizing a constitution and State 
government in the Territory of Orleans when its free inhabit- 
ants should number 60,000. On the 20th of February, 181 1, 
an act was passed to enable the people to form a constitution and 
State government. This was done January 2 2d, 181 2, and the 
State was admitted into the Union by act of Congress, April 8th, 
181 2, to take effect April 30th of that year. 

Indiana, formed from a part of the North-west Territory, was 
admitted December nth, 1S16. The Territory of Indiana, 

T _ formed Mav 7th, 1800, was divided Tanuarv nth, 

Indiana, . . . 

December nth, 1805, and the Territory of Michigan established. 
1816. j t was a g ani divided, February 3d, 1809, and the 

Territory of Illinois established. The people of Indiana Terri- 
tory having applied for admission into the Union, an enabling 
act was passed by Congress, April 19th, 1816, and a constitution 
was formed June 29th. A joint resolution admitting Indiana 
into the Union was approved December nth, 1816. 

Mississippi, formed from territory ceded by South Carolina 
August 9th, 1787, and by Georgia, April 24th, 1802, was ad- 
mitted December 10th, 181 7. Congress established 

Mississippi, ' c 

December 10th, the territorial government April 7th, 1798. An 
l8l7> act to enable the people of the western part of the 

Mississippi Territory to form a constitution and State govern- 
ment was passed March 1st, 181 7. A constitution was formed 
August 15th, 181 7, and the State admitted by act of Congress 
December 10th, 1817. 

Illinois was formed from the North-west Territory, and ad- 
mitted December -*d, 1818. The Territory of 

Illinois, ° ' J 

December 3d, Illinois was established February 3d, 1809. A 

lSl8 - memorial of the legislative council to be allowed to 

form a State government having been presented to the House of 



ALABAMA, MAINE, MISSOURI. 28 1 

Representatives in January, 1818, an enabling act was passed 
April 1 8th. The constitution was formed August 26th, and the 
State was admitted by joint resolution December 3d, 181 8. 

Alabama, formed from a part of the territory ceded to the 
United States by South Carolina and Georgia, was admitted 
December 14th, 1819. The eastern part of Missis- 
sippi Territory was made a separate territory, under December 14th, 
the name of Alabama, by act of Congress, March l8l9# 

3d, 181 7. Congress, having been memorialized, passed an en- 
abling act March 2d, 181 9, and a constitution and State govern- 
ment were formed August 2d, 18 19. The State was admitted 
by joint resolution December 14th, 1819. 

Maine was formed from a part of Massachusetts, and be- 
came a State March 15th, 1820. A project was entertained as 
early as 1786 to erect a separate State from that „ . 

J ' x Maine, 

part of Massachusetts known as the District of March 15th, 
Maine, and a convention had once met at Portland l82 °* 

to consider it. It was, however, abandoned for the time. On 
the 19th of June, 18 19, the legislature of Massa- Fr 

chusetts gave their consent to the formation of a Massachu- 
new State, if the people of the district desired it, setts " 

and would consent to certain conditions. This having been 
done, a convention formed a constitution October 29th, which 
was ratified by the people December 6th. A petition was then 
presented to Congress, and the State admitted by an act passed 
March 3d, 1820, to take effect March 15th. 

This was the third State formed from a part of another. The 
others, Vermont and Kentucky, were admitted, with two Rep- 
resentatives each ; but Maine was declared to be entitled to 
seven, Massachusetts having thirteen ; Massachusetts had twenty 
before. The new States which had been Territories had each 
but one Representative till the next census after their admission. 

Missouri, formed from the Louisiana purchase, was admitted 

August 10th, 182 1. As before stated, the act of March 26th, 

1804, divided the territory purchased from France, known as 
a. c— 24. 



282 THE NEW STATES. 

the Louisiana purchase, into two Territories. What is now 

the State of Missouri was a part of the northern territory, 

which was called the District of Louisiana. For 

Missouri, 

August 10th, about a year this was under the Governor and 

l821. Judges of Indiana Territory. On the 3d of March, 

1805. a separate government was provided, and the name 

changed to that of Territory of Louisiana. On 

Louisiana ^e 4th of June, 1812, the name was changed to 
that of Missouri Territory. March 2d, 181 9, the 
southern part was separated and erected into a new Territory, 
called Arkansas Territory. Congress having been memorialized 
to admit Missouri as a State into the Union, an act was passed 
March 6th, 1820, authorizing the formation of a constitution 
and State government. There was a division in Congress as 
to Missouri, whether it should be admitted with slavery. The 
enabling act was a compromise. It provided that Missouri 
might be admitted as a slave State, but that from all other parts 
of the Louisiana purchase lying north of the south line of 
Missouri — 36 30' north latitude — slavery should be forever 
excluded. This act was known as the ' ' Missouri Compromise. " 

On the 19th of July the people formed a constitution, which 
was laid before Congress November 16th. March 2d, 1821, a 
resolution providing for the admission of Missouri into the Union 
on a certain condition was approved. The condition having 
been accepted June 26th, 1821, the President issued a proclama- 
tion, August 10th, 1 82 1, declaring the admission complete. 1 

Arkansas, formed out of part of the territory ceded by 
France in 1803, was admitted June 15th, 1836. 

The Territory of Arkansas was established March 2d, 1819, 
having been taken from the Territory of Missouri. On the 
30th of January, 1836, a constitution was formed by a con- 



1 The constitution of Missouri excluded from the State all free people of color. The 
condition imposed by Congress was that the legislature should declare by solemn 
act that no law should ever be passed to carry into effect that provision of the 
constitution. 



ARKANSAS, MICHIGAN. 283 

vention, and this was laid before Congress March ist, with a 
memorial, asking admission into the Union. An act to admit 
was approved June 15th, 1836. There was no 

Arkansas, 

enabling act passed by Congress in the case of June 15th, 
Arkansas. All the States admitted up to this time l8s6, 

that had existed as Territories except Tennessee, had been au- 
thorized by Congress to form constitutions and State governments. 
Tennessee claimed the right of admission under the 
deed of cession from North Carolina to the United T 

Louisiana. 

States; and Arkansas claimed a like right, by 
virtue of the treaty with France ceding to the United States the 
Province of Louisiana. This treaty provided that ' - The inhab- 
itants of the ceded territory shall be incorporated in the Union 
of the United States and admitted as soon as possible, according 
to the principles of the Federal Constitution, to the enjoyment 
of all the rights, advantages, and immunities of citizens of the 
United States." It has been held by legal writers that the action 
of these Territories in forming constitutions and State govern- 
ments without authority from Congress was irregular, and that 
Congress was not required to admit them at the time of 
application. 

Michigan, formed from the North-west Territory, was admit- 
ted January 26th, 1837. 

The Territory of Indiana was divided and that of Michigan 
established January nth, 1805. The legislative council, in ac- 
cordance with a vote of the people, having me- MJch . 
morialized Congress for admission into the Union, January 26th, 
a bill was reported as an enabling act for that pur- 
pose February, 1833; but, on account of the dispute between 
Ohio and Michigan as to boundaries, it was not passed. On 
the 6th of September, 1834, the legislative council From the 
of the Territory provided for taking the census, North-west 
and, afterward, for forming a constitution. This Territory, 
constitution having been ratified by the people October 5th, 1835, 
a State government was organized. A copy of the constitution 



2S4 THE NEW STATES. 

was then sent to the President with a request for admission into 
the Union. As the southern boundary which Michigan had 
given in her constitution was south of the northern boundary of 
Ohio, she could not of course be received without a change. 
Strong opposition was made to receiving her at all without an 
enabling act ; but finally an act of admission was passed. June 
15th. 1836. admitting her on the condition that a convention of 
delegates, elected by the people, should assent to the boundaries 
prescribed by Congress. This was done December 15th. 1836, 
and the State was admitted by act of Congress, approved Jan- 
uary 26th. 1 S3 7. 

Florida was formed out of the territory ceded by Spain to 
the United States by treaty of February 2 2d. 181 9. It was ad- 

„ .. mitted into the Union March 3d. iS-is. A terri- 

Flonda, o -rj 

March 3d, torial government was established by act of 
I&45 ' Congress, March 30th, 1822. No enabling act 

was passed in the case of Florida. The convention which 
framed her constitution was called bv the legislature of the Ter- 
ritory. She based her right to admission on the treaty with 
Spain, as Michigan had based hers on the ordinance of 1787, 
and Tennessee hers on the deed of cession from North Carolina. 
She applied for admission in February, 1839, presenting the 
proceedings of her convention, a constitution, etc., but she was 
not admitted till March 3d. 1845, as stated above. 

The next State admitted was Texas, which came in b) r a joint 
resolution of Congress, approved December 29th, 1845. Texas. 

originally a part of Mexico, had become an in- 
Annexed dependent republic. She declared her indepen- 
Decemberagth, dence in 1835. and the United States recognized it 

in 1837. In 1840 England and France did the 
same. Mexico had never acknowledged the independence of 
Texas. A treaty for the annexation of Texas to the United 
States, negotiated by Mr. Calhoun. Secretary of State, was laid 
before the Senate early in 1S44. but it was rejected by a large 
majority. The plan of annexation by joint resolution was then 



TEXAS, IOWA. 285 

attempted, and the resolution adopted in March, 1845. This 
required the assent of Texas, which was promptly given, and 
annexation was completed in December. Provision was made 
for four new States from the same territory. And the principle 
of the Missouri Compromise was made applicable to such States. 

Two Representatives in Congress were allowed. The case of 
Texas differs from all others in this, that before it became 
a State, being an independent republic, its people were in 
no respect subject to the government of the United States. 

Iowa was the next of the new States admitted. 

Iowa, 

Iowa was admitted December 28th, 1846, and was December28th, 
formed from a part of the Louisiana purchase. l846. 

Confusion has arisen as to the origin of this State, and some writers 
represent it as having been formed from the original territory of the 
United States. This confusion is owing to the fact that 
the Territory of Iowa was formed from that of Wisconsin, From 

and this from that of Michigan ; and as Michigan and 
Wisconsin were both formed from the North-west Territory, the inference 
was natural that Iowa was also formed from that territory. 

Prior to the purchase of Louisiana, in 1803, the United States owned no 

territory west of the Mississippi. The North-west Territory, organized by 

the ordinance of 1787, embraced the territory north-west of 

. . The N. W. 

the Ohio and east of the Mississippi. This territory was ~ 

rr J Territory once 

divided in 1800, and the western part was called the Terri- embraced the 

tory of Indiana. In 1805 the Territory of Michigan was region west 

established, and in 1809 that of Illinois. The Territory of e 

... . . n . , . . . . , r Mississippi. 

Michigan, at that time, included the territory north 01 

Ohio, Indiana, and Illinois, and east of the Mississippi. But, on the 28th 
of June, 1834, an act of Congress attached to the Territory of Michigan 
all the territory of the United States west of the Mississippi and north of 
the State of Missouri. This, of course, included what is now Iowa. On 
the 20th of April, 1836, the territorial government of Wisconsin was es- 
tablished. Iowa thus became a part of the Territory of Wisconsin. This 
Territory was divided, and the new Territory of Iowa was established ou 
the 1 2th of June, 1838. 

No enabling act was ever passed by Congress for Iowa. In 
February, 1841, a bill to that effect was reported to the House 



286 THE NEW STATES. 

of Representatives, but it was not passed. Three years after, 
the President communicated to the Senate a memorial from the 
legislative assembly for admission into the Union. And on 
December 9th of the same year a memorial of a convention, 
with a copy of a constitution, was received in the Senate. 

On the 3d of March, 1845, an act f° r th e admission of Iowa 
was approved. This act required the assent of the people of 
Iowa to be given, after which the President might by proclama- 
tion announce the admission without further action on the part 
of Congress. This course, however, was not adopted. On 
the 1 8th of May, 1846, another constitution was formed, and 
qtd. this second constitution the act of final admission was 
passed December 28th, 1846. Iowa was allowed two Repre- 
sentativ e 

Wisconsin was admitted May 29th, 1848. This State was 

formed from the North-west Territory, making the fifth State, 

Wisconsin, and thus completing the number provided for in 

May 29. 1848, tne or (ii nance f 1787. The others, as we have 

from the ' ' ' 

North-west seen, are Ohio, Indiana, Illinois, and Michigan. 

Territory. The Territory of Wisconsin was established 

April 20th, 1836, having been formed from that of Michigan. 
On the 20th of March, 1845, a resolution of the legislative 
council of Wisconsin, asking that provision be made for taking 
a census and holding a convention to form a State constitution 
was presented in the Senate. An enabling act was approved 
August 6th. 1846. A State constitution was formed December 
1 6th, 1846, and in January it was presented in Congress. On 
the third of March, 1847, an act f° r the admission of Wiscon- 
sin was passed; the admission to be on the condition of the 
assent of the qualified voters to the constitution. The Presi- 
dent was to announce the assent by proclamation, and then the 
admission was to be complete. 

But, as in the case of Iowa, this plan was not carried out. 
The constitution was rejected by the people in 1847, an d another 
convention was held and another constitution was adopted 



CALIFORNIA, MINNESOTA. 287 

February ist, 1848. This was ratified by the people. The 
preamble of the act of admission, approved May 29th, 1848, 
recognized this constitution as republican, making it thus the 
basis of admission. The boundaries of the State were the 
same as prescribed in the enabling act of August 6th, 1846. 
That act gave the State two Representatives till the next census, 
but the act of admission provided for three from and after 
March 4th, 1849. 

California was admitted into the Union September 9th, 1850. 
It was formed from a part of the territory ceded to the United 
States by Mexico in the treaty made at Guadalupe f . 

Hidalgo, February 2d, 1848. By this treaty the Sept. 9,1850, 
United States obtained, besides California, what is from 

. . Mexico. 

now the State of Nevada and the Territories of 
Utah, New Mexico, and Arizona, and portions of Colorado 
and Wyoming. California never had a territorial government. 
Most of the new States existed previously as Territories; four — 
Maine, Vermont, Kentucky, and West Virginia — were formed 
from parts of other States; one — Texas — was an independent 
republic, and was annexed to the United States by joint resolu- 
tion of Congress. California differed from all the rest in her 
previous condition. Efforts were made in Congress to pass 
acts to establish a territorial government, but they all failed. 

A convention was called by General Riley, the military gov- 
ernor, which on the 13th of October, 1849, formed a constitu- 
tion. This was ratified by the people on the 13th of November, 
and the State was admitted September 9th, 1850. Two Repre- 
sentatives were allowed her. 

Minnesota was admitted May nth, 1858. The State, lying 
on both sides of the Mississippi River, was formed in part from 
the Louisiana purchase and in part from the North- Minnesota, 
west Territory. A territorial government was Ma y "> l8 5 8 > 
established March 3d, 1849. On the 26th of Louisiana 
February, 1857, Congress authorized the people of and 

the Territory to form a constitution and State gov- 



Zhl THI NTT? i 

**»■«=■«* preparatory to their admission into r Tnion. A 
ention was held accord:: : a zntnstttnrion formed 

.-. . 

T - "::. ■ 

r ^ 
ming tc 
mate convert : 7 
- 
i 

re- 
- 
: 
- 

; 

His : ::.5-7 -_:;- ] : :- - 

: Represer 
C'J admittr me deer. 

el 7 . - iff 

Ore; OH 

: 7: 
anc E 3 . . " " : : : 

Occupation. _. _r.r L 

Tnrna I ml our r 

-aim to all nor: e 426. parallel, and 

ISrirtain did the same 7 south 

: :.-:. t_ There if :: ."_..- : : ::: : ::ie :: :t rirh: by l.- rr 

bobs from France if France had ai 
: : : - : 7 : • Tr n .- • - : 

.-..:. L4±n 184B. in a 

::_ lies Fnmmit of the E.: 

. -~h latitude,** The 

ad into :_ ~ 7 - hrngton 

■ . ~ - 253. 



ADMISSION OF KANSAS. 289 

A convention was called by the legislature of the Territory 
to meet in August, 1857, and in September a constitution was 
formed, which was submitted to the people for ratification, and 
approved. No enabling act had been passed by Congress in 
her case. She was declared entitled to one Representative. 

Kansas was admitted January 29th, 1861. It was formed 
from a part of the Louisiana purchase. It was organized as a 
Territory May 30th, 1854, by the act known as 
the Kansas-Nebraska Act — the two Territories Jan. 29, 1861, 
being established by the same act. This act from 

. Louisiana. 

caused great excitement throughout the country. 
The "Missouri Compromise" of 1820 provided that there 
should be no more slave States north of the parallel of 36 ° 30'. 
This had been re-affirmed in the joint resolution of March 1st, 
1845, f° r annexing Texas, and again in the act defining the 
boundaries ot Texas and establishing the Territory of New 
Mexico, passed September 9th, 1850. 

Kansas and Nebraska were both north of the parallel of 36 ° 
30', but the act by which they were organized as Territories 
provided that when they should be admitted as Missouri 
States into the Union they should be received, Compromise 
with or without slavery, as their constitutions might 
prescribe at the time of their admission. The same act de- 
clared the Missouri Compromise inoperative and void. 

On the 23d of October, 1855, a convention at Topeka formed a consti- 
tution. This was a spontaneous movement on the part of those known as 
the Free State party, not having been called either by the 

Governor or the territorial legislature. The constitution _ v . 

° Convention. 

was submitted to the people and ratified by a large ma- 
jority of those who voted — the other party not voting. Under this con- 
stitution an election of State officers was held January 15th, 1856, and a 
State government organized. President Pierce issued a proclamation 
against this government in February, and on the fourth of July the legis- 
lature was forcibly dispersed by an officer of the United States army. 
The territorial legislature also provided for a convention, which assem- 
bled at Lecompton, September 5th, 1S57, and framed the constitution 
A. C— 25. 



290 THE NEW STATES. 

known as the Lecompton constitution. This established slavery. Ap- 
plication for admission into the Union was then made, but the bill as 
introduced was not passed. A bill for conditional admission was passed 
May 4th, 1858, which required that the constitution, with 

Lecompton r > t u i__ tl j 

Convention certain propositions from Congress, should be submitted to 
the people. This was done on the 3d of August of that 
year, when the constitution was rejected by ten thousand majority. 

Another convention was held at Wyandotte, and a constitu- 
tion was formed in July, 1859. 1 This was submitted to the 
people October 4th, and ratified by a majority of 
Convention. ^ our thousand. Under this constitution Kansas 
was admitted into the Union January 29th, 1861. 
She was declared to be entitled to one Representative. 

West Virginia was admitted into the Union June 20th, 1863. 
It was formed from a part of Virginia. The circumstances of 
West the formation of this new State were peculiar. 
Virginia, On the 1 7th of April, 1 86 1, a body of men, styling 
June 20, 1 3. themselves the convention of Virginia, passed an 
ordinance of secession from the United States. Most of the 
State officers joined the rebels, carrying with them the public 
funds and the archives of the State. The territory was still 
a part of the national domain, though most of it was in posses- 
sion of the rebels. The loyal people, whom alone the Consti- 
tution or government of the United States could recognize as 
the people of Virginia, were without a State government. 

In this exigency they took the reconstruction of the State gov- 
ernment into their own hands. They called a convention, which 
met at Wheeling, June 13th, 1861, and passed an 
constructed ordinance providing for the appointment of a Gov- 
and ernor and other State officers, and requiring the 

Formed 1 . 1 "* g enera l assembly to meet July 1st. This conven- 
tion also passed an ordinance to provide for the 
formation of a new State out of a portion of the territory of 

1 The act of Ma}* 4, 1858, provided for another convention in case the constitution 
then to be submitted to the people should be rejected. Thus for the Wyandotte con- 
stitution there was an enabling act, which was not the case as to the others. 



WEST VIRGINIA, NEVADA. 291 

Virginia. The people within the prescribed boundaries were to 
vote on the question of a new State, and polls were also to be 
opened for the election of delegates to a convention to form a 
constitution. The vote having been largely in favor of a new 
State, the convention met at Wheeling, November 26th, and 
framed a constitution which was adopted by the people. 

May 13th, T862, the legislature of Virginia gave consent to 
the formation of a new State. December 31st, Congress 
passed an act admitting West Virginia, provided the people 
should ratify a proposed change in the constitution. That 
being done, the President was to issue a proclamation, and the 
admission was to be complete sixty days after the proclamation. 
The convention adopted the change February 17th, 1863. The 
vote of the people on the ratification of the amended constitu- 
tion was taken March 26th, 1863, being largely in its favor. On 
the 20th of April the proclamation was issued, and sixty days 
thereafter — June 20th, 1863 — West Virginia became one of the 
United States. She was allowed three Representatives. 

In this case there was the consent of three parties — the State 
from which the new State was formed, Congress, and the 
people of the district set off. If it were doubted whether the 
body that met at Wheeling in July, 1861, was the general 
assembly of Virginia, the action of the United States Govern- 
ment in its three departments must be deemed conclusive. 

Nevada was admitted into the Union October 31st, 1864, by 
the proclamation of the President. It was formed from a part 
of the territory obtained from Mexico by the treaty 
of February 2d, 1848. It was organized as a Oct. 31, 1864, 
Territory March 2d, 1861. In 1863 a constitution from 

. Mexico. 

was formed and submitted to the people, but re- 
jected. On the 2 1 st of March, 1864, an enabling act was 
passed by Congress, which provided for the holding of a con- 
vention on the first Monday of July. If a constitution should 
be framed, it was to be submitted to the people on the second 
Tuesday of October. The President of the United States, on 



292 THE NEW STATES. 

bein°: certified that such constitution had been ratified by the 
people, was to issue his proclamation admitting it "without 
further act of Congress. This was done October 31st. 1864. 
Nevada was to have one Representative. 

Nebraska was admitted March is:. : 867. This is a part of 

the Louisiana purchase. It was organized as a Territory May 

30th, 1854. An enabling act was passed for it 

March i, iS5;, April 19th, 1S64. In January, 1S67. Congress 

from passed an act approving its constitution, and ad- 

Louisiana. J . . 

mitting it on condition that there should be no 
denial of the elective franchise or of other rights because of 
race or color. The act, though vetoed by President Johnson, 
became a law. The conditio::? were fulfilled, and it became a 
State by proclamation of the President March is:. 1S67. It 
had one Represents tr 

Colorado became a State August 1st, 1S76. A part of it 

came from Louisiana and a part from the territory acquired 

;;.;:-■ from Mexico. It was organized as a Territory 

§ . g ; 1, 1S76 February : _ ; : .: .::::. A bill to admit it as a State 

Louisiana assed in January. 1S67. but was vetoed by 

and the President An enabling act was passed March 

3d, 1875, an d a Constitution was formed. This 

ratified by the people in July. 1876, and the President was 

duly certified thereof. It then, by the terms of the enabling 

act, became his Jury to declare the State admitted into the 

Union * * without any farther action whatever on the part of 

Cozgrt It came in with one Representative. 

The thirty-eight States may be arrar._ jc i. with regard to their 
v. as follows: Original States, thirteen — New Hampshire, 
:::s. Connecticut. Rhode Island. New York. New 
Jersey. Pennsylvania. Delaware. Maryland. Virginia, North 
Carolina, South Carolina, Georgia. States formed from terri- 
tory originally belonging bo the United States, or to individual 
States : — Vermont^ Maine, Kentucky. Tennessee. Missis- 

sippi, Alabama, Ohio, Indiana, Illinois, Michigan, Wisconsin, 



THE TERRITORIES. 293 

West Virginia. States formed from territory purchased by the 
United States, seven — Florida, Louisiana, Arkansas, Missouri, 
Kansas, Nebraska, Iowa. States from conquered territory, 
two — California, Nevada; from discovery and cession, one — 
Oregon; of mixed origin, two — Minnesota and Colorado; ex- 
isting before as an independent republic, one. — Texas. 

Arranged according to the mode of admission, the new States 
would be grouped as follows : Four were formed from other 
States — Vermont, Maine, Kentucky, West Virginia. One had 
no previous territorial goverment — California. Otie was an- 
nexed — Texas. The remaining nineteen had been organized as 
Territories prior to their admission as States. 



TERRITORIES. 

There are eight organized Territories. Washington and 
Idaho are a part of the Oregon territory. Dakota is a part of 
the province of Louisiana. Arizona, New Mexico, and Utah 
are part of the territory acquired from Mexico in 1848 and 
1853. Montana is chiefly from Louisiana, that part west of 
the Rocky Mountains being originally a part of Oregon. 
Wyoming has its larger part from Louisiana, with smaller por- 
tions from Oregon and Mexico. 

The Executive power of a Territory is vested in a Governor ; 
the Legislative, in the Governor and a Legislative Assembly; 
and the Judicial, in a Supreme Court, District 
Courts, Probate Courts, and Justices of the Peace. Government 
The Governor, Secretary, Chief Judge and two 
Associate Judges, Attorney, and Marshal, are appointed by 
the President, with the advice and consent of the Senate, for 
four years. The Legislative Assembly consists of a Council 
and House of Representatives. These are elected by the 
people — the former for two years, the latter for one year. By 
act of 1880 the sessions of the Territorial legislatures are 






: 



TStL 

ii-^e : :.: - :~-cz--: ::: t t_-. __;. _._. : -_ . : : ; -_—:.. z... do 

- _ - - - - 

- " z : 
-■ 
~:..i— . :• ■;■- I.usli :: :•.'--. ::~lizi~: i: '"iizr- 

~".. : .; . r- iii .:.'..:: _ .. . 

n_. :. 
- ,--,- — — , ~ - -- : .. - --_ — .---■ . -, ~ Einzr- ~~ -^. : 
rr. l 

1: tt 

HI- LJCHX 

Xl 

im . - . 



.." r „'i' 



. _ - - ■ 
: . : . . ■ ■ i 



CHAPTER VII. 

PRACTICAL OPERATION OF THE CONSTITUTION. 

IN this chapter will be given some account of the workings 
of the government under the Constitution. The more im- 
portant offices in the different departments will be mentioned, 
with the duties, etc., of the various officers. 

THE LEGISLATIVE DEPARTMENT. 

The Constitution provides, as has been seen, for a Congress, 
composed of a Senate and House of Representatives. The 
Senators are elected by the State legislatures, and hold their 
office for six years ; the Representatives are elected by the 
people of their several districts for the term of two years. The 
members of the two Houses receive the same compensation, 
$5,000 a year, with mileage at the rate of "twenty cents a 
mile, to be estimated by the nearest route usually traveled in 
going to and returning from each regular session." 

THE SENATE. 

The Vice-president of the United States is the President of 
the Senate. He gives the casting vote when the Senate is 
equally divided, and signs all bills and resolutions that are 
passed by the Senate. His salary was originally $5,000. In 
1853 it was raised to $8,000, in 1873 t0 $10,000, and in 1874 
reduced to $8,000. 

The list of Vice-presidents will be found in the Appendix. 

(295) 



296 THE LEGISLATIVE DEPARTMENT. 

There is no provision in the Constitution or by statute for 
filling a vacancy in the office of Vice-president. When the 
Vice-president becomes President, the Senate choose a Presi- 
dent pro tempore, but this does not constitute him Vice-president. 

THE HOUSE OF REPRESENTATIVES. 

The presiding officer, called the Speaker, is chosen by the 
House. The term had its origin when legislative bodies were 
addressed by the chief executive, and their presiding officer was 
expected to respond. As he spoke for the body he was called 
the Speaker. He signs all bills and joint resolutions passed by 
the House, and, under the rules of the House appoints its 
committees. He is required to vote in case of ballot, and he 
may vote on other occasions. His salary is $8,000. For list 
of Speakers see Appendix. 

PRACTICAL LEGISLATION. 

In each House there are Standing Committees, to whom are 
referred the various matters of business for examination and re- 
port. It has been usual for the Speaker to appoint the House 
Committees, while in the Senate they are chosen by ballot. 

In the Forty-ninth Congress the Senate had thirty-four Stand- 
ing Committees, besides a number of Select Committees and 
Joint Committees. The House had forty-four Standing Com- 
mittees. The principal Committees are those on Ways and 
Means, Appropriations, Judiciary, Foreign Relations, Elections, 
Banking and Currency, Commerce, Post-office, Claims, Pacific 
Railroad, Indian Affairs, Public Lands, District of Columbia, 
Public Expenditures, Naval Affairs, Territories, Military Affairs, 
Mines and Mining, Freedmen's Affairs, Education and Labor, 
Revision of the Laws, Patents, Coinage, Manufactures, Agri- 
culture, Pensions, Public Buildings. 

In the Senate, a Standing Committee usually consists of nine 
members, and in the House, of thirteen ; ranging from seven to 



PRACTICAL LEGISLATION. 297 

fifteen. As "all bills for raising Revenue" must originate in 
the House, the Senate has no Committee of Ways and Means. 
This Committee is regarded as the most important in the 
House, and the place of Chairman is held to be next to 
that of Speaker in honor. 1 

The House often resolves itself into a Conunittee of the Whole, 
when the Speaker leaves the chair and a chairman is appointed. 
This gives opportunity for free discussion without the restraint 
of the strict rules of the House. When this committee closes 
its session, in technical terms rises, the Speaker resumes the 
chair, and the chairman of the committee reports its pro- 
ceedings. 

A bill introduced into either House is supposed to be read 
three times, and at each reading to be formally acted upon by 
the House. But usually, if no objection is made, the bill is 
read twice by its title, referred to the appropriate committee, 
and ordered to be printed. When a bill has been reported from 
the committee, it is ordered to be eiigrossed and read a third 
time, when the vote is taken upon its passage. Having passed 
both Houses it is enrolled on parchment, and carefully examined 
by the Committee on Enrolled Bills. After a bill has been re- 
ported by this committee it is signed by the Speaker of the 
House and the President of the Senate, and sent to the Presi- 
dent of the United States for his signature. 

When a bill has been passed over the veto of the President 
by the requisite majority in each House, the published statutes 
give certificates to that effect, signed by the Clerk of the House 
of Representatives and the Secretary of the Senate, in addition 
to the official signatures of the Speaker of the House and the 
President of the Senate. 

If a bill has been presented to the President for his approval 
and not returned by him within the time prescribed by the Con- 



1 There are three Joint Committees: on Public Printing-, on Enrolled Bills, and 
on the Library. These consist of three or more members from each House. 



298 THE EXECUTIVE DEPARTMENT. 

stitution, a note to that effect is appended by the Department 
of State. A bill passed in the usual way and approved by the 
President, has the word "Approved" and the date appended. 

THE EXECUTIVE DEPARTMENT. 

The executive power is vested in a single officer, styled the 
President of the United States. We have seen that he must be 
thirty-five years of age, a native-born citizen, and a resident for 
fourteen years in the United States. He is elected for a period 
of four years by electors chosen by the people in the several 
States. His term commences on the 4th of March. The 
salary, which can not be increased or diminished during the 
period for which he shall have been elected, was $25,000 a 
year till the 4th of March, 1873, when Congress raised it 
to $50,000. 

The President may be re-elected, and seven have been 
elected for a second term. 

The following is a list of the Presidents : 

George Washington, of Virginia, was unanimously elected 
the first President. Though the term properly began on the 
4th of March, he was not sworn into office until the 30th of 
April. He was re-elected unanimously, and thus held the office 
eight years, till March 4th, 1797. 

John Adams, of Massachusetts, was elected in the fall of 
1796 over Thomas Jefferson ; his term expired March 4th, 1801. 

Thomas Jefferson, of Virginia, was elected by the House of 
Representatives. John Adams was the opposing candidate be- 
fore the people, but in the House the friends of Mr. Adams 
voted for Aaron Burr. Mr. Jefferson was elected on the thirty- 
sixth ballot, and Mr. Burr became Vice-president. Mr. Jeffer- 
son was elected for a second term, his competitor being Charles 
C. Pinckney, of South Carolina. Mr. Jefferson was President 
from 1801-1809. (See page 157.) 

James Madison, of Virginia, was elected over Mr. C. C. 



THE PRESIDENTS. 299 

Pinckney in 1808, and again, in 181 2, over De Witt Clinton, 
of New York, his term ending March 4th, 181 7. 

James Monroe, also of Virginia, was elected, in 181 6, over 
Rufus King, of New York, and re-elected, in 1820, almost 
unanimously. 

John Quincy Adams, of Massachusetts, was elected by the 
House of Representatives in February. 1825. The electoral 
votes were given to Andrew Jackson, J. Q. Adams, W. H. 
Crawford, and Henry Clay. The House, from the three highest 
candidates, chose Mr. Adams, who received the votes of thir- 
teen States; seven voting for Mr. Jackson, and four for Mr. 
Crawford. Mr. Adams served the full term from March, 1825, 
to March, 1829. 

Andrew Jackson, of Tennessee, was elected, in 1828, over 
Mr. Adams, and again, in 1832, over Henry Clay, of Ken- 
tucky, holding the office for eight years, to March 4th, 1837. 

Martin Van Buren, of New York, was the successful candi- 
date, in 1836, over Wm. Henry Harrison, of Ohio. His 
term ended March 4th, 1841. 

William H. Harrison was elected, in 1840, over Mr. Van 
Buren. He entered upon his duties March 4th, 1841, and died 
April 4th of the same year. John Tyler, of Virginia, the Vice- 
president, thus became President. He took the oath of office 
April 6th, and served the remainder of the term, to March 4th, 

1845. 

James K. Polk, of Tennessee, was elected, in 1844, over 
Henry Clay, and served four years, to March 4th, 1849. 

Zachary Taylor, of Louisiana, was elected over Lewis Cass, 
of Michigan, in 1848. He entered upon his duties March 4th, 
1849, aR d died July 9th, 1850. Millard Fillmore, of New 
York, the Vice-president, took the oath of office July 10th, and 
served till March 4th, 1853. 

Franklin Pierce, of New Hampshire, was elected, in 1852, 
over Winfield Scott, and held the office one term, from March, 
1853, to March, 1857. 



300 THE EXECUTIVE DEPARTMENT. 

James Buchanan, of Pennsylvania, was elected, in 1856, over 
John C. Fremont and Millard Fillmore. He served one term, 
to March, 1861. 

Abraham Lincoln, of Illinois, was elected, in i860, over John 
Bell, John C. Breckenridge, and Stephen A. Douglas. In 1864 
he was re-elected over George B. McClellan, and died April 
14th, 1865. Andrew Johnson, of Tennessee, the Vice-presi- 
dent, was sworn in as President April 15 th, and served the 
remainder of the term. 

Ulysses S. Grant, of Illinois, was elected, in 1868, over 
Horatio Seymour, of New York, and re-elected in 1872. His 
competitor in 1872, Horace Greeley, of New York, died No- 
vember 29th. President Grant's second term expired March 
4th, 1877. 

Rutherford B. Hayes, of Ohio, was elected, in 1876, over 
Samuel J. Tilden. He served till March 4th, 1881. 

James A. Garfield, of Ohio, was elected, in 1880, over Win- 
field S. Hancock. He died September 19th, 1881, and Chester 
A. Arthur, of New York, the Vice-president, took the oath of 
office September 20th, and served the remainder of the term to 
March 4th, 1885. 

Grover Cleveland, of New York, was elected in 1884, over 
James G. Blaine, of Maine. 



THE DEPARTMENTS. 

The Constitution contemplates "heads of departments." 
The departments are not defined in the Constitution, but have 
been established by law. There are now seven of these, viz, 
The Department of State, of the Treasury, of War, of the 
Navy, of the Post-office, of the Interior, of Justice. The heads 
of the departments are known collectively as "The Cabinet," 
and with two exceptions are called Secretaries. The head of 



THE DEPARTMENT OF STATE. 301 

the Post-office Department is called the Postmaster-General, and 
the head of the Department of Justice is the Attorney-General. 
The salary of each is $8,000. 

Some of the departments are subdivided into subordinate de- 
partments, known as Bureaus. Thus in the Department of the 
Interior the Patent Office is a Bureau, and the Pension Office, 
and the Census Office. In the War Department there is the 
Bureau of Military Justice, the Bureau of Engineers, etc. 

THE DEPARTMENT OF STATE. 

In January, 1781, prior to the adoption of the Constitution, 
Congress had established the Department of Foreign Affairs, to 
be under the direction of an officer styled " Secretary for the 
Department of Foreign Affairs." R. R. Livingston was the 
first Secretary. In July, 1789, an Executive Department was 
established under the same designation, which in September was 
changed to that of the Department of State. 

The office of Secretary of State is usually regarded as next in 
importance to that of the President. The duties of the office 
are not very clearly defined by law, but are largely such as come 
from the instructions of the President. The Secretary is to 
"perform and execute such duties as shall from time to time be 
enjoined on or intrusted to him by the President, agreeably to 
the Constitution, relative to correspondences, commissions, or 
instructions to or with public ministers or consuls from the 
United States." 

He preserves the original of all treaties, public documents, 
laws, and correspondence with foreign powers. He keeps the 
seal of the United States, and affixes it to all commissions which 
are signed by the President. He authenticates all proclamations 
of the President. He furnishes copies of records and papers 
in his office, authenticated under the seal of the department. 

He has charge of foreign relations, and conducts the corre- 
spondence with foreign ministers, and with our ministers and 



I', z r:-:z executive department. 

consuls. He is the organ of communication of the President 
with the governors and other officers of Territories. 

He issues passports to citizens wishing to visit foreign countries. 
He issues warrants for the extradition of criminals who are to 
be delivered up to foreign governments in accordance with 
treaty stipulations. He presents to the President all foreign 
ministers. 

The salary of the Secretary of State is now $8, coo a year. In 1789, it 
was established at $3,500. In 1799, it was made $5,000; in 1819, $6,000; 
in 1853, $8,000; in 1873, $10,000; and in 1874, $8,000. 

F 'jT list of Secretaries of State, see Appendix. 
In 1853 an Assistant Secretary was authorized; in 1866, a 
second; and in 1874, a third. 

AMBASSADORS AND OTHER PUBLIC MINISTERS. 

All persons who are sent abroad to represent our government 
are connected with the Department of State. These representa- 
tives are of different grades, though it is not easy to draw the 
lines that distinguish them. The Constitution speaks of "Am- 
bassadors," and the act of August 18th, 1856, states the com- 
pensation which ministers of this class shall receive. Mr. 
Gilletsays: "The federal government has never sent an am- 
bassador to any foreign government, and, it is said, has never 
received a foreign representative who was strictly such. France, 
Russia, Great Britain, Austria, and Spain are the only modern 
governments who have sent ambassadors to other governments. 
Prussia has never done so. 

The act of 1856, referred to above, provides for the compen- 
sation of the different classes of ministers: Ambassadors and 
Z d Ex rraordinary and Ministers Plenipotentiary are entitled 

to receive the full compensation named; Ministers Resident 
and Commissioners, seventy-five per centum ; Charges d' Affaires, 



1 The Federal Government, page 172. 



THE DEPARTMENT OF STATE. 303 

fifty per centum ; and Secretaries of Legation, fifteen per centum. 
Judging from the salaries paid, the Envoy Extraordinary and 
Minister Plenipotentiary is of equal rank with the Ambassador ; 
and this is the formal designation given by our government to 
the highest class of its foreign ministers. 

Envoys Extraordi7iary and Ministers Plenipotentiary are sent to 
some fifteen governments. Their salaries range from $10,000 
to $17,500. The latter sum is paid to the Ministers to Great 
Britain, France, the German Empire, and Russia. 

Ministers Resident are inferior in rank to Envoys Extraordi- 
nary and Ministers Plenipotentiary. Their duties, however, 
are the same. The difference is principally in the relative im- 
portance of the governments to which they are sent. Their 
salaries range from $5,000 to $7,500. 

The term Commissioner has sometimes been applied by our government 
to diplomatic representatives. Commissioners were formerly sent to 
China, Mexico, and other places. At present no regular diplomatic officer is 
styled a Commissioner. The title is often applied to those sent on special 
service, as in the case of the Commissioners who helped to frame the 
Treaty of Washington. 

Charges d' Affaires are rarely sent at present. The rank is below that of 
the Minister Resident. The term would imply a kind of minister ad 
interitn, rather than a permanent officer. Formerly, however, a majority 
of our diplomatic representatives were styled Charges d'Affaires. Thus, 
in 1849 there were eight Ministers Plenipotentiary, one Minister Resident 
(to Turkey), and sixteen Charges d'Affaires. 

The Secretary of Legation is the secretary, or clerk, to a 
foreign embassy. A Secretary of Legation is usually sent to 
every government to which is accredited a Minister Plenipo- 
tentiary. At Paris, London, and Berlin there are Assistant 
Secretaries. The Ministers to Chili and Japan have no Secre- 
taries, while there is a Secretary at Constantinople, although 
the United States is represented there by a Minister Resident. 
Sometimes, through the death or removal of the Minister, his 



304 THE EXECUTIVE DEPARTMENT. 

duties are devolved on the Secretary of Legation, in which case 
he receives the salary of a Charge. 

Consuls are commercial rather than diplomatic agents. Their 
principal duty is to watch over the interests of our commerce in 
the ports of the different countries, and to protect the rights of 
seamen. 

In execution of this general duty, they hold the ship's papers of all 
American vessels while in port ; they hear complaints of seamen ; they 
reclaim deserters ; they appoint examiners for vessels reported un- 
seaworthy ; they cause mutinous sailors to be arrested and sent home for 
trial ; they require three months extra wages to be paid to seamen when 
discharged through the sale of the vessel, one third to be retained as a 
fund with which to send American sailors home or provide for those who 
are destitute ; they take possession of the personal property of American 
citizens dying abroad ; they take measures for the saving of stranded 
vessels and their cargoes, etc., etc. 

The United States has some thirty Consuls-General, some of 
whom are also Ministers Resident. There are also three hun- 
dred or more Consuls and Commercial Agents. Until the 
year 1855 these officers were compensated by fees. In March 
of that year the diplomatic and consular systems were remodeled, 
and salaries are now paid in all the more important ports. 
Fees are collected, but they are accounted for to the govern- 
ment. Consuls receive from $1,000 to $6,000 per annum. 
Most Consuls who are paid by fees, or who receive small 
salaries, are at liberty to transact business for themselves; 
others are prohibited from so doing. 



THE TREASURY DEPARTMENT. 

A Treasury Department was established by the Continental 
Congress early in 1781, the chief officer being styled the 
Superintendent of Finance. Robert Morris was the first 
Superintendent. 



THE TREASURY DEPARTMENT. 305 

The present department was established in 1789. Its head 
is the Secretary of the Treasury. The original act provided 
also for a Comptroller, an Auditor, a Treasurer, a Register, 
and an Assistant to the Secretary. 

It is the duty of the Secretary to digest and prepare plans for 
the improvement and management of the revenue, and for the 
support of public credit; to superintend the collection of the 
revenue ; to decide on the forms of keeping accounts and mak- 
ing returns; to grant, under certain limitations, all warrants 
for money to be issued from the treasury in pursuance of appro- 
priations by law; and, generally, to perform all such services 
relative to the finances as shall be required. 

The power and influence of this department have increased 
with the growth of the country in wealth and population, and 
it has been still more enhanced by the great increase of the 
national debt, the establishment of the system of internal 
revenue, the issue of a legal tender paper currency, and the 
establishment of the national banking system. 

The salary of the Secretary of the Treasury has been the same as that 
of the Secretary of State: in 1789, $3,500; in 1799, $5,000; in 1819, 
$6,000; in 1853, $8,000; in 1873, $10,000; in 1874, $8,000. 

For a list of Secretaries, see Appendix. 
There are two Assistant Secretaries. 



BUREAUS IN THE TREASURY DEPARTMENT. 

The work in this department is performed by various officers, 
distributed in bureaus as follows : office of First Comptroller, 
Second Comptroller, First Auditor, Second Auditor, Third 
Auditor, Fourth Auditor, Fifth Auditor, Sixth Auditor, Treas- 
urer, Register, Commissioner of Customs, Comptroller of the 
Currency, Commissioner of Internal Revenue, Bureau of Sta- 
tistics, the Mint, Bureau of Engraving and Printing. 
a. c .— 26. 



306 THE EXECUTIVE DEPARTMENT. 

It is the duty of the Comptrollers to examine all accounts set- 
tled by the Auditors, and to countersign warrants drawn upon 
the Treasurer by the heads of the different departments. Hav- 
ing the final adjudication of accounts involving vast sums of 
money, the Comptrollers hold a most responsible office, requir- 
ing great capacity as well as the strictest integrity. 

The office of Comptroller was created in 1789, and in 181 7 
a Second Comptroller was provided for. The First Comptroller 
examines all accounts settled by the First and Fifth Auditors, 
and certifies the balances arising thereon to the Register. He 
countersigns all warrants drawn by the Secretary of the 
Treasury. He decides any cases appealed from the decision 
of the Sixth Auditor, and superintends the recovery of all debts 
to the United States. 

The Second Comptroller examines the accounts settled by the 
Second, Third, and Fourth Auditors, and certifies the balances 
to the Secretary of the department in which the expenditure 
has been incurred. He countersigns all warrants drawn by the 
Secretaries of the War and Navy Departments. (Those from 
the Department of the Interior are divided between the two 
Comptrollers.) 

THE AUDITORS. 

The act of 1789. establishing a Treasury Department, pro- 
vides for a single Auditor, who was to receive all public ac- 
counts, to certify the balance, and transmit the accounts, with 
the vouchers and certificates, to the Comptroller for his de- 
cision. In 181 7 four additional Auditors were authorized, and 
the work was divided among them. In 1836 a Sixth Auditor 
was added. 

The First Auditor examines the accounts accruing in the Treasury De- 
partment, and those connected with the salaries of civil officers, terri- 
torial accounts, judiciary expenses, contingent expenses of the Senate 
and House of Representatives, etc. 



THE TREASURY DEPARTMENT. 307 

The Second Auditor receives accounts relating to the pay and clothing 
of the army, the subsistence of officers, bounties and premiums, military 
and hospital stores, the contingent expenses of the War Department, and 
those pertaining to Indian affairs. 

The Third Auditor has charge of accounts relative to the subsistence 
of the army, the Quartermaster's department ; and, generally, all accounts 
of the War Department other than those provided for. 

The Fomth Auditor receives all accounts accruing in the Department 
of the Navy. 

The Fifth Auditor receives the accounts of the Department of State, 
including the diplomatic and consular agents ; the contingent expenses of 
the Post-office Department ; the expenses of the Census ; and the expenses 
of assessing and collecting the Internal Revenue. 

The office of Sixth Auditor was created in 1836. His duties are partly 
those of an Auditor and partly those of a Comptroller. He certifies 
balances to the Postmaster-General instead of to one of the Comptrollers. 
He is styled an Auditor of the Treasury for the Post-office Department, 
and has direct official relations to both these departments. The other 
Auditors transmit their statements to the Comptrollers for revision and 
final decision, but the Sixth Auditor's decisions are final, except special 
appeal is taken to the First Comptroller. 

The office of Treasurer was created in 1789. It is his duty 
to receive and keep the moneys of the United States, and to 
disburse the same upon warrants drawn by the Secretary of the 
Treasury, countersigned by the First Comptroller and recorded 
by the Register. In 1846 certain rooms and vaults in the new 
Treasury buildings were appropriated to the use of the Treas- 
urer, which, with other apartments provided as places of 
deposit of the public money, were constituted "The Treasury 
of the United States." Provision was made for the appoint- 
ment of four Assistant Treasurers — at New York, Boston, 
Charleston, and St. Louis — and the treasurers of the mints at 
Philadelphia and New Orleans were to act as such. When the 
national banks were established, in 1863, the Secretary of the 
Treasury was authorized to designate them as depositaries of 
public moneys, except receipts from customs, and they could 
be employed as financial agents of the government. 



5 Z B THE EXECUTIVE DEPARTMENT. 

The signature of the Treasurer is on all the treasury notes 
issued by the United . and was on all the postal and 

fractional currency while issued. 

Besides those mentioned above, there are Assistant Treas- 
urers at Baltimore, Cincinnati, Chicago, and San Fran- 
cisco. 

The office of Register was created in 17 89. It was made his 
duty to keep all accounts of the receipts and expenditures, and 
of all debts due to or from the United States ; to preserve with 
their vouchers accounts which have been finally adjusted; and 
to record all warrants for the receipts or payment of moneys at 
the treasury, and certify the same thereon. He signs all stocks 
and bonds of the United States, and superintends their issue. 
He signs all treasury notes, and ' ; keeps the great ledgers which 
show the whole receipts and expenditures of the govern- 
ment. 

There was no Commissioner cf Customs until 1849, when 
certain acts and powers relating to the receipts from customs 
and accounts of collectors and other officers, which had before 
devolved on the First Comptroller, were transferred to this new 
officer. 

In 1863 a separate Bureau :.iblished in the Treasury 

Department, called the Bureau of Currency, to be under the di- 
rection of an officer denominated the Comptroller of the Currency. 
The act establishing this bureau was the ' ' Act to provide a 
National Currency, secured by a pledge of United States Bonds, 
and to provide for the circulation and redemption thereof," 
passed February 25th, 1863. and subsequendy superseded by an 
act for the same purpose, passed June 3d, 1864. 

It is the duty of the Comptroller to see that all banking as- 
sociations established under this act are organized and managed 
; rding to law ; to provide the banks with notes for circula- 
tion ; to send agents to examine into their condition ; to close up 
the affairs of such as fail to pay their notes; and report annu- 
ally to Congress their condition, etc. 



THE TREASURY DEPARTMENT. 309 

The number of national banks October 7th, 1886, was 2,852. 
The amount of notes in circulation was about $229,000,000. 

Bureau of Internal Revenue. — The act establishing this bureau, 
the head of which is styled Commissioner of I?iternal Revenue, 
was passed in 1862. A similar office was created in 1813, and 
abolished in 181 7. For a period of five years, commencing 
with 1863, the receipts into the treasury from Internal Revenue 
largely exceeded those from Customs, but they are now much 
diminished. In the year ending June, 1866, the receipts from 
this source were $309,000,000; in the year ending June, 1886, 
they were but $117,000,000. The Internal Revenue taxes have 
been repealed for the most part, except those on tobacco, on 
malt and spirituous liquors, and a few stamp duties. 

The act establishing the Bureau of Internal Revenue pro- 
vided for the appointment of an Assessor and a Collector in each 
collection district, and for twenty-five Supervisors. The office 
of Assessor ceased July 1st, 1873, an d the duties are devolved 
on the Collectors. 

In 1866, a Bureau of Statistics was established, the Director of 
which is to prepare the annual report on the statistics of com- 
merce and navigation, and exports and imports ; and to prepare 
and publish monthly reports of various statistics. 

By act of February 12th, 1873, The Mint of the United States 
was established as a Bureau of the Treasury Department, the 
chief officer to be styled The Director of the Mint. He is charged 
with the general supervision of all mints and assay offices. 
There are mints at Philadelphia, San Francisco, Carson, and 
New Orleans. 

The Bureau of 'Engraving and Printing was established in 1874. 
The design is to have executed under its supervision the internal 
revenue stamps, the national bank notes, and the notes, bonds, 
and securities of the United States. 

The office of the Coast Survey is connected with the Treasury 
Department. It has for its object the preparation of charts 
prepared from actual survey of the entire sea-coast of the United 



3IO THE EXECUTIVE DEPARTMENT. 

States.- The surveys of the great lakes are under the control 
of the War Department. 

In 1852, the Light-hvuse Board was constituted. It consists 
of three officers of the army, three of the navy, and two civil- 
ians of high scientific attainments, with the Secretary of the 
Treasury as ex officio president. To this board are committed all 
duties pertaining to the construction and superintendence of 
light-houses, light-vessels, beacons, buoys, etc. 

In the collection of customs many persons are employed in 
connection with the different custom-houses. The chief officer 
is the Collector. The Naval Officer and the Surveyor have im- 
portant duties, which are not very clearly indicated by their 
names. They are appointed only in the larger ports. 

The Supervising Architect has the general charge of planning 
and constructing all United States Buildings, as custom-houses, 
court-houses, post-offices, marine hospitals, mints, etc. 

THE WAR DEPARTMENT. 

The office of Secretary of J Var was created in 1789. Such a 
department existed before the adoption of the Constitution, Ben- 
jamin Lincoln having been appointed Secretary of War and 
Marine in February, 1781; and "an ordinance for ascertaining 
the powers and duties of the Secretary at War" was passed by 
the Continental Congress in January, 1785. The Department 
of the Navy was not established till 1798, and up to that time 
the duties of the Secretary of War extended to naval as well as 
military affairs. 

The salary of the Secretary of War was for thirty years $500 less than 
those of the Secretaries of State and the Treasury, being $3,000 in 1789, 
and $4,500 in 1 799. In 1 8 19 the salaries of the four Secretaries were 
made equal — $6,000. In 1853 they were made $8,000; in 1873, $10,000; 
and in 1874, $8, 000. 

For list of Secretaries see Appendix. 



THE WAR DEPARTMENT. 3II 

The War Department is divided into various subdivisions, in 
which are employed many men, civilians as well as those con- 
nected with the army. These different offices, which will be 
understood from their titles, are as follows : 

The Office of the Adjutant-General, 
The Office of the Quartermaster-General, 
The Office of the Commissary-General, 
The Office of the Paymaster-General, 
The Office of the Surgeon-General, 
The Office of the Chief-of-Engineers, 
The Ordnance Office, 
The Signal Office, 
The Bureau of Military Justice. 

The Signal Office and the Bureau of Military Justice were 
established in 1866. The Chief Signal officer has the rank and 
pay of a colonel of cavalry. The Bureau of Military Justice is 
in charge of a Judge-Advocate-General, who has the rank and 
pay of a Brigadier-General. 

The Military Academy at West Point, in the State of New 
York, is connected with the War Department. It was estab- 
lished in 1802. At first, provision was made for only ten 
cadets, but in 181 2 Congress authorized the number to be in- 
creased to two hundred and fifty. The present corps of cadets 
consists of one from each Congressional District, one from each 
Territory, one from the District of Columbia, and ten from the 
United States at large; these are all appointed by the President. 1 
They must be between the ages of seventeen and twenty-two, 
and pledge themselves, with the consent of parents or guardians, 
to serve eight years unless sooner discharged. 



1 So the Statute requires. Practically, each Congressional Representative recom- 
mends one for his district to the Secretary of War, and this officer nominates to the 
President. Of late years the selection is frequently made by competitive examina- 
tion, and with good results. 



r- : 



ihz _ ' . : : 



_ u — ?: m: T 



_ :. r ;,:':"":::::: : .:. : — -ist: : :' 7:7 77777:7 irr 

:..: t l~- Tit A:o..ie~- 7 — 777- ;.::>;;-:: :t 



:f 



7.7 :._::: ::::'::;■::; :: : . : 777, j::::. 77. _.:t 
i - -- r77 : t : 



7- 



" : 7_-i :. :. ~ - - - - - ■---■_■ 



Si j. f'- 1 -- 

: 



_ -_;-: 7 7 -■:-t.:t.-;.. 5 J :.:«:. 
Cn i m l, %,3nn. 

1 m.-.-:.:'..:c±L 5; :c:«:. 
: 7i - - 5-. f :•:• 



7 : : \:..v : : ' ~ : in i ■:. 5- ice. 

7 :::-::■:. "_ j ~. S: ■•:-: 

: L : -.- : - : 

r_ ;^:r-i. 5: ] '-■'-■ 

5 : - : : 

5 : ; :c. 



.-:i:::. "7.7 717 7 
7 "- "777 :-?;"". : r 



: :: ±e 



re.r'v _•_: rmj: :; ^777777 
Tcr :e-7i— :":: 7 77- :.rr~ ::" 
j 7: : :: ±z.::tfi ::rrr 7er 



777 7;i" ::' 



7 :.7.7 r: 1 _7 L77- 1 777 777. ~ 71 "It 1 I __77 



71. t 777. A7 ::_777 7777 t;/ 77.5 

ri :"7 77.7-7777.77777 : '77 :er ttlv 



. 



rnz : 12 



;75 : 7 



77 . 



was g^tfcsHn Jhi 

.• 777 . . . 






7 17 7 7-: j L.u : 7 _77 : i ■:•: 

7;: 757 : :' -77:7777: 777 .-..777771. 



THE DEPARTMENT OF THE NAVY. 313 

The salary of the Secretary of the Navy was at first $3,000. In 1799 it 
was made $4,500; in 1819, $6,000; in 1853, $8,000; in 1873, $10,000; 
and in 1874, $8,000. 

By act of July 5th, 1862, there were established eight Bureaus 
in the Navy Department, for each of which a chief was to be 
appointed from the list of the officers of the Navy by the Presi- 
dent. These chiefs of Bureaus hold their office for four years. 

The Bureau of Yards and Docks. — Vessels are built and repaired at Navy 
Yards, of which the government has nine, viz., at Kittery, Maine ; 
Charlestown, Mass.; 1 New London, Conn.; Brooklyn, N. Y.; League 
Island, Penn.; Washington, D. C; Norfolk, Va.; Pensacola, Fla.; and 
Mare Island, Cal. There are Naval Stations at Sackett's Harbor, N. Y., 
and at Key West, Fla. This bureau has charge of the construction and 
maintenance of all docks, piers, etc., within the Navy Yards. It has 
charge also of the Naval Arsenals, and of the Naval Asylum. 

The Bureau of Eqtdpment and Recruiting. — This bureau supplies ves- 
sels in commission with rigging, sails, anchors, fuel, etc. It has charge 
of recruiting all seamen, landsmen, and boys for the service ; and the 
charge also of receiving-ships and recruiting rendezvous. 

The Bureau of Navigatio?i. — This bureau has supervision of 
what relates to the Hydrographic Office, the Naval Observa- 
tory, the Nautical Almanac, the Signal Office, and Naval 
Apprentices. The War Department has its Signal Office also. 

The Observatory was established in 1842 under the name of 
"Depot for Naval Charts and Instruments." 

The Bureau of Ordnance. — To this bureau belongs the general charge 
of providing and storing guns and ammunition of every kind. Under its 
direction experiments are made to test new species of ordnance and am- 
munition. The subject of torpedoes has recently received much atten- 
tion. 



1 The Navy Yard at Kittery, Maine, is the same as that known as the Portsmouth 
(N. H.) Navy Yard. The one at Charlestown is often spoken of as at Boston. Both 
names, Boston and Charlestown, are applied to the same Navy Yard in the same 
statute. U. S. Statutes at Large, XVII, page 552. 
A. C— 27. 



: 1 4 THE EXECUTIVE DEPARTMENT. 

The Bureau of Medicine and Surgery. — There are eight naval hospitals 

all medical supplies for the department. 

The Bureau of Provisions and Clothing. — The name of this bureau 
indicates its duties. 

Bureau of Steam Engineering. — All that pertains to the steam ma- 
chinery by which vessels are impelled comes under the charge of this 
bureau. 

Bureau of Construction and Repair. — This bureau has charge of all that 
relates to planning, building, and repairing vessels, both wood and iron, 
as distinct from the engines and machinery by which they are impelled. 

The Naval Academy. — This institution, which sustains to 
the Navy the same relation which the Military Academy at West 
Point does to the Army, seems not to have been established by 
an act of Congress, but to have been commenced by the N 
Department without formal legislation. The first action of 
Congress regarding it is found in the act making appropriations 
for the naval service, August ioth, 1846. 1 This provides that 
of the money appropriated for "pay of the navy n and " con- 
tingent expenses enumerated," an amount not exceeding 
$28,200 may be expended under the direction of the Secretary 
of the Navy for repairs, improvements, and instruction at Fort 
Severn, Annapolis, Maryland- In March, 1847, a like sum 
was appropriated for the same purposes, "and for the purchase 
of land for the use of the naval school at that place, not ex- 
ceeding twelve acres." 

The students, who are called cadet-midshipmen, must be, 
when appointed, not under fourteen years of age nor over 
eighteen. There may be one from each congressional district, 
and one from each Territory, with ten at large. The latter are 
appointed by the President, the others are nominated to the 
Secretary of the Navy by the Representatives and Delegates in 
Congress. From 1862 to 1867 two were authorized from even- 
congressional district. 



: H:- stzrzi i.i-:7::: - ii :r_ez ;t:r?:iry ::' :jit Ni ••--.-. 



THE DEPARTMENT OF THE NAVY. 



315 



The course of study has been four years, but it is now 
changed to six, commencing with the class entering in 1873. 
They become midshipmen on graduating, and are promoted to 
ensigns as vacancies occur, promotion being according to class 
rank. 

A course of study has been provided for cadet-engineers, to 
be appointed, to the number of fifty, by the Secretary of the 
Navy. 1 The course embraces four years of study at the 
Academy, and two years of service in naval sea-steamers. 
Their pay is that of midshipmen. 



The yearly pay of the Offi 


cers 


the Navy is 


as follows 

On Shore 


On Leave, or 
Waiting 






At Sea. 


Duty. 


Orders. 


Admiral, .... 




$13,000 


$13,000 


$13,000 


Vice-Admiral, 




9,000 


8,000 


6,000 


Rear-Admiral, 




6,000 


5,000 


4,000 


Commodore, 




5,000 


4,000 


3,000 


Captain, .... 




4,5°° 


3.500 


2,800 


Commander, .... 




3»5oo 


3,000 


2,300 


Lieutenant-Commander, 




2,800 


2,400 


2,000 


Lieutenant, .... 




2,400 


2,000 


I,600 


Master, 




1,800 


1,500 


1,200 


Ensign, .... 




1,200 


1,000 


80O 


Midshipman, 




1,000 


800 


60O 


Surgeon, Paymaster, and Chie 


F En- 








gineer, .... 




2,800 


2,400 


2,000 


Fleet Surgeon, Paymaster, and Chief 








Engineer. .... 




4,400 


4,400 


4,400 


Passed Assistant Surgeon, Paymas- 








ter, and Chief Engineer, 




2,000 


1,800 


1,500 


Assistant Surgeon, Paymaster 


, and 








Chief Engineer, 




1,700 


I,40O 


1,000 


Chaplain, .... 




2,500 


2,000 


1,600 


Professor of Mathematics and 


Civil 








Engineer, .... 


• 


2,400 


2,400 


1,500 



1 The large use of steam-vessels in the navy rendered this course necessary for the 
training of engineers. 



316 THE EXECUTIVE DEPARTMENT. 

Most of those who are below the grade of Commanders have their pay 
increased after five years of service by from $200 to $400 a year ; with 
some this increase is but once, but with others the pay is increased at the 
end of each five years up to twenty. 

The pay of officers retired after forty years' service, or on 
attaining the age of sixty-two years, or from incapacity resulting 
from long and faithful service, from wounds or injuries received 
in the line of duty, or from sickness or exposure therein, is 
seventy-five per centum of the sea-pay of their grade when 
retired ; in all other cases the pay of retired officers is one half 
the sea-pay. 

The pay of " seamen " in the navy is twenty dollars a month; 
of "ordinary seamen,"' sixteen dollars: of "landsmen," four- 
teen dollars; of "boys."' from eight to ten dollars. 

Until September, 1862, a spirit ration was allowed in the 
navy; at that time it was abolished, and five cents a day was 
allowed in place of it. This allowance was abolished June 
30th, 1870. 

THE DEPARTMENT OF THE INTERIOR. 

This department was established by act of Congress, March 
3d, 1849. The act is entitled " An Act to establish the Home 
Department." A department was proposed under that name 
in 1789. The duties of the department relate to various offices 
which have been transferred to it from other departments. It 
is less homogeneous, therefore, than the others. 

At its establishment the Patent Office and the Census Office 
were transferred to it from the Department of State ; the Land 
Office, the charge of Mines, and the accounts of officers of 
the Courts, from the Department of the Treasury; the charge 
of Indian affairs from the Department of War; the charge of 
Pensions from the Departments of War and the Navy ; and the 
care of Public Buildings from the President. Subsequently it 



THE DEPARTMENT OF THE INTERIOR. 317 

was charged with the duty of receiving and distributing public 
documents, and with duties relating to Territories, which had 
been performed by the State Department. The Department of 
Education, which was at first independent, has been made an 
office in this department. 

The salary has been the same as the other Secretaries have received, 
being now $8,000. An Assistant Secretary was authorized in 1862. 

For a list of Secretaries, see Appendix. 

The Patent Office. — This bureau is under the superintendence 
of a Commissioner, who is assisted by an Assistant Commis- 
sioner. There is a lafge corps of Examiners, Assistant Exam- 
iners, Clerks, Copyists, and Laborers employed in the Patent 
Office. Besides the charge of this large force, the Commis- 
sioner has a large amount of judicial work to perform — in hear- 
ing and deciding cases relating to patents. The Commissioner 
receives $4,500, and the Assistant Commissioner $3,000 a 
year. 

The Pension Office. — Provision was early made for the pay- 
ment of pensions, but the office of Commissioner of Pensions 
was not created till March, 1835. This officer was to execute, 
under the direction of the Secretaries of War and the Navy, 
such duties in relation to the various pension laws as might be 
prescribed by the President. The office was created for two 
years, but extended from time to time. In 1849 ft was trans- 
ferred to the Department of the Interior and made permanent. 

The Land-Office. — The public lands of the United States which 
are for sale are under the care of an officer styled the Commis- 
sioner of the General Land-Office. This office was created in 
181 2, and it was made the duty of the Commissioner to attend 
to various matters touching the public lands which had before 
that been transacted in the several departments of State, of the 
Treasury, and of War. The Land-Office was placed in the De- 
partment of the Treasury till, on the creation of that of the 
Interior, in 1849, ft was transferred to that department. 



318 THE EXECUTIVE DEPARTMENT. 

The first survey of public lands was made in 1786, under the 
land ordinance of 1785. The lands surveyed were in south- 
eastern Ohio, and are known as the "Seven Ranges." The 
survey was made under the direction of Thomas Hutchins, 
Geographer of the United States. 

The principal officers under the Commissioner are : 

Surveyors-General, 
Registers of Land-Offices, 
Receivers of Land-Offices. 

There are now seventeen Surveyors-General, — one in each land 
district. 1 Under their direction all the land is accurately sur- 
veyed and described, and thus prepared for sale. The United 
States system of surveys provides for the division of the lands 
into ranges, townships, sections, and fractions of sections. 
The ranges are bounded by meridian lines, six miles apart, and 
are numbered east and west from a principal meridian. These 
are divided into townships of six miles square, numbered north 
and south from a given parallel. Townships are divided into 
thirty-six sections of one mile square, or six hundred and forty 
acres. The sections are divided into quarters, which are again 
subdivided into eighths and sixteenths. 

The sections in a township are numbered, beginning at No. 1 
in the north-east section, and proceeding west and east alter- 
nately, as indicated in the annexed diagram. The description 
of land is thus made exact to tracts of forty acres ; as, the N. 
W. y^ of the N. E. % of Section 19, Town 27 North, Range 
18 West. 

By the ordinance of 1785, establishing the system of surveys 
by ranges and townships, the sections of a township were num- 
bered from south to north, the south-east section being No. 1, 
and the north-west one No. 36. 



1 In 17% the office of Surveyor-Genera! was created, Rufus Putnam being the 
first incumbent. There was but one Surveyor-General for a considerable period. 



THE DEPARTMENT OF THE INTERIOR. 



3*9 



6 


5 


4 


3 


2 


i" 

12 


7 


8 


9 


10 


11 


18 


17 


16 


15 


14 


13 


19 


20 


21 


22 


23 


24 


30 


29 


28 


27 


26 


25 


3i 


32 


33 


34 


35 


36 



Registers are appointed in the 
several land districts, who re- 
ceive applications for lands in 
their districts, file receipts for 
payments, and, on the final pay- 
ment, give to the purchaser a 
certificate which entitles him to 
a patent, i. e., a deed from the 
United States. Formerly the 
patent was signed by the Presi- 
dent, and countersigned by the 
Secretary of State; 1 after 181 2 the patent was countersigned by 
the Commissioner. Since 1836 a secretary, appointed by the 
President, signs patents in his name, and they are countersigned 
by the Recorder. 

The government price of land is one dollar and a quarter an 
acre. Previous to 1820 the price was two dollars. For alter- 
nate reserved lands along the line of railroads within the limits 
granted by any act of Congress, the price is two dollars and 
fifty cents an acre. From 1854 to 1862 land long in market 
was sold at reduced rates. The sale of mineral lands is regu- 
lated by special laws. 

The Receiver receives money or land-scrip from the purchaser, 
giving receipts therefor, which are passed over to the Register. 

The Commissioner of Indian Affairs. — Until 1832 the business 
of the government relating to the Indians had been managed by 
the clerks in the War Department. In that year Congress au- 
thorized the President to appoint a Commissioner, who should, 
under the direction of the Secretary of War, have the general 
superintendence of all Indian affairs. Since 1849 tne Secretary 
of the Interior has had charge. The Commissioner has the di- 



1 Three patents to the Ohio Company for 1,228,168 acres, dated May 10th, 1792, are 
signed by G? Washington, and countersigned by Th: Jefferson. These patents, with 
one exception, the first issued by the government, are in the library of Marietta 
College. 



:;: THE EXECUTIVE DEPARTMENT. 

rection of the eight Superintendents, and a large number of 

.:i :z.zer :e ..:.::/ -:..-:i zzezzzz.- 

ir. laborers, etc. 

!':■: ] ' ' - - . : — 7>_r itzfzs ii rzkez :z:t 

iz. :e: vezrs. Tz.r : ~ : -, :: ^ ;:;:::::::::; z:: :cnn:e::. 
therefore; but its duties are highly respon : k The aeaasas 
rerzrz.5 ire ::" rrei: vzlze. "z::z ~-:z". i :t zzziz :z::ti5ti :j 
an earlier publication. 

The Bureau of Fducation. — In 1867 "A Department of Edu- 
cation" was established at Washington, for the purpose of ed- 
it :zzz 5:1:;:: : 5 £z: ~zzz :lze : :z i irl:z :ii'::::::: ::" ezzzizl:z. 
in :lze Sziits zz.z 7rrz;:::;rf. iz.z :: zzzzizzz szi'z zzzzrzzzziiz 
is zzizz: zr:z:::r zlze zzzst ::" riz:iz:z zzr:zi;z:z: zze 
In :i:i Cizzzess tzmez zzi: ■■ :lz e I'i:mei: ::* 
Education 77 should cease, and that there should be established 
and attached to the Department of the Interior an office to be 
denominated The Office of Education, the chief officer of which 
5- "-ill :t sr-iri .7- C:~n:i5i:z.rr ::" Z:::.:::::. ~r_: "is :: 
;r::::zz zzr zzzles zezzre zreizri'zcz. 



:: '.-': ' . : .- .-. :-.- : : 71 : ~:~ 1 



I" :::: 2 L'ti zrzzz-rzz: r: Arm" 

. . : .. - - : - - : - - 



•f;:z ::" :';.: '- 7-7 „iz:t zz zze I tz ;:zzirz: 
:emr zzilzzzzz ::.: z>rzzei :i: zrzzezzr ;:" zzt : 
z;:irz.' J:: zzzzy yeizs zrf-z: zs :: : : : : . zzt ::. 
kernr: —is ziriy :z _ :z: :: izzmzmzril fz;z5 iz. 

Tzrlr 5rrZZS '.'. _t ZI ZZITt rrliZZ fir ZlllzZi: ZZZi 

ziez: :z:.z zz zze use :: :zt zzzir ::* Zzz: 
z:z:z: :: :: _ : zze Fresizrz: szeiki :: :: :z :zt 5t: 



THE POST-OFFICE DEPARTMENT. 32 I 

"department" and in another as the "Agricultural Bureau." 
And the House of Representatives, a few years ago, asked the 
Secretary of the Interior to furnish them certain agricultural 
documents, but were informed that his department had no 
cognizance of agricultural matters. Agriculture should either 
have a "department" to itself or be a Bureau of the Depart- 
ment of the Interior. 

Miscellaneous. — The Secretary of the Interior has the general charge of 
the Penitentiary in the District of Columbia, and of those in the Terri- 
tories. The following act was passed in March, 1873: "That the Secre- 
tary of the Interior shall hereafter exercise all the powers and perform all 
the duties in relation to the Territories of the United States that are now 
by law or by custom exercised and performed by the Secretary of State." 

THE POST-OFFICE DEPARTMENT. 

There were arrangements for carrying letters by mail before 
the colonies separated from the mother country. Dr. Benjamin 
Franklin had the general superintendence under the British gov- 
ernment, and in July, 1775, ne was appointed by the Second 
Continental Congress, " Postmaster-General of the United Col- 
onies." When the Constitution went into operation, Congress, 
by act of September 22d, 1789, provided for the "temporary 
establishment of the Post-office," the regulations to be "the 
same as they last were under the resolutions and ordinances of 
the late Congress." 

In 1792 an act was passed to establish a General Post-office. 
There was to be a Postmaster-General, who should have power 
to appoint an Assistant, and Deputy Postmasters at all places 
where such should be found necessary ; he was also ' ' to super- 
intend the business of the department" in all the duties that 
should be assigned to it. This act was, indeed, limited to two 
years, but in 1794 a similar one was enacted, which had no lim- 
itation of time. We may say, therefore, that the Post-office 
Department has been in operation from the first Congress under 



322 THE EXECUTIVE DEPARTMENT. 

the Constitution. 1 An act to revise, consolidate, and amend the 
statutes relating to the Post-office Department, containing three 
hundred and twenty-seven sections, was passed June 8th, 1872. 

The salary of the Postmaster-General was $2,000 in 1792, $3,000 in 
1799, $4,000 in 1819, $6,000 in 1827, $8,000 in 1853, $10,000 in 1873, 
and $8,000 in 1 874. 

It is said that the Postmaster-General did not attend the meet- 
ings of the Cabinet prior to the administration of President 
Jackson, who invited Mr. Barry to be present at their meetings. 
The practice has been continued from that time. 

For the list of Postmasters-General see Appendix. 

There are three Assistant Postmasters-General ; the Postmaster- 
General appointed them until 1853; since then the appoint- 
ment has been by the President and Senate. 

The First Assistant Postmaster- Ge?ieral \isls the superintendence 
of matters relating to the establishment and discontinuance of 
post-offices, the appointment and removal of postmasters, fur- 
nishing blanks and stationery, steamship lines, and international 
postage. His office is called the Appointment Office. 

Under the charge of the Second Assistant Postmaster- General 
belongs whatever relates to letting contracts for carrying the 
mails, the mode of conveyance, the time of arrival and de- 
parture, offices of distribution, etc. This is known as the Con- 
tract Office. 

The Third Assistant Postmaster- General has charge of the 
general financial business of the department, provides stamps 
and stamped envelopes, receives the quarterly returns from 
Postmasters, and superintends the dead-letter office. This is 
the Finance Office. 



1 Mr. Gillet, in his work on The Federal Government, says: "There has never 
been any statute establishing a Post-office Department. • * It is first spoken of as 
a Post-office Department in the title of an act in 1825." But that title itself is, "An 
Act to reduce into one the several acts establishing and regulating the Post-office De- 
partment." This very title thus asserts that previous acts had established such a 
department. We have seen above that the General Post-office was called a " depart- 
ment" in the act of 1792. An Act of March 3d, 1S01, speaks "of the several depart- 
ments of the Treasury, of War, of the Navy, and of the General Post-office." 



THE DEPARTMENT OF JUSTICE. 323 

The office of the Superintendent of the Money-order System is 
now a bureau, like the three just mentioned, with its chief clerk. 

In the office of the Superintendent of Foreign Mails there is 
also a chief clerk. 

There are six Chief Clerks, viz., in the Post-office Department, in the 
Appointment Office, in the Contract Office, in the Finance Office, in the 
Money-order Office, and in the Office of Foreign Mails. Formerly there 
was but one — in the Post-office Department — and his office was regarded 
as a bureau, and called the Inspection Office. He is now the clerk for the 
Postmaster-General, as the others are for the heads of the bureaus. 

THE DEPARTMENT OF JUSTICE. 

This department was created by act of Congress, June 2 2d, 
1870. The Attorney-General is the head of it. While the De- 
partment of Justice has been quite recently established, the 
office of Attorney-General was created in 1789; and this officer, 
though without a " department," has always been recognized as 
a member of the Cabinet. 

The act of September 24th, 1789, made it his duty to prose- 
cute and conduct all suits in the Supreme Court in which the 
United States should be concerned, and to give his advice and 
opinion upon questions of law when required by the President, 
or when requested by the heads of any of the departments 
touching any matters concerning their departments. 

These opinions are furnished in writing, and subsequently 
printed. They now form many volumes, and are consulted by 
the various departments. 

In 1 86 1 he was charged with the general superintendence of 
the attorneys and marshals of all the judicial districts in the 
United States and the Territories. He was also authorized to 
employ counsel to aid district-attorneys in the discharge of their 
duties. He examines the title of lands which the government 
proposes to purchase for forts, dock-yards, custom-houses, or 
other public purposes. 



324 THE EXECUTIVE DEPARTMENT. 

In 1859 the Attorney-General was authorized to appoint an 
Assistant. In 1868 Congress provided that, in place of this 
and three other officers, the President should appoint two 
Assistant Attorneys-General. In 187 1 a third Assistant Attor- 
ney-General was authorized, and there is now a fourth, called 
the Assistant Attorney-General of the Post-office Department. 

Though the Attorney-General had a seat in the Cabinet from the first, 
his salary was much below the others. It was fixed, in 1789, at $1,500, 
and not till 1850 was it made equal to that of the other members of the 
Cabinet — $6,000. In 1853 it was made $8,000; in 1873, $10,000; and in 
1874, $8,000. 

For list of Attorneys-General see Appendix. 

The Solictor-General is next in rank to the Attorney-General. The act 
of 1870 continued the two Assistant Attorneys-General already authorized 
by the act of 1868. The act also transferred to the Department of Jus- 
tice the Solicitor of the Treasury and his assistants and the Solicitor of 
Internal Revenue from the Treasury Department, the Naval Solicitor 
from that of the Navy, and the Examiner of Claims from the Depart- 
ment of State. All these officers were to be appointed by the President 
and Senate. 

The Attorney-General makes an annual report to Congress 
of the business of his department, and any other matters apper- 
taining thereto that he may deem proper, including the statis- 
tics of crime under the laws of the United States, and, as far as 
practicable, under the laws of the several States. He may 
require any officer of the department to perform any duties 
required of the department or any officer thereof; and the 
officers of the law department, under his direction, shall give 
all opinions and render all services necessary to enable the 
President and the officers of the Executive Department to dis- 
charge their duties. The Secretaries of the various departments 
are not to employ counsel at the public expense, but to call 
upon the Department of Justice for the legal service they 
need. 



CHIEF JUSTICES OF THE SUPREME COURT. 325 

The Department of Justice, which is one of the Executive 
departments, must not be confounded with the Judicial Depart- 
ment, which is one of the three great divisions of the govern- 
ment and co-ordinate with the Executive Department. 

The following are the principal officers in the Department of Justice, 
with their salaries : 

Attorney-General, $8,000 

Solicitor-General, 7,000 

Assistant Attorney-General, 5, 000 

Assistant Attorney-General at the Court of Claims, 5, 000 
Assistant Attorney-General in the Department of the Interior, 5,000 

Assistant Attorney-General in the Post-office Department, 4,000 

Solicitor of Internal Revenue, 4>5oo 

Naval Solicitor, 3>500 

Examiner of Claims, 3>5°° 

Solicitor of Treasury, 4,500 

Assistant Solicitor, 3, 000 

There are many persons employed in the various departments at Wash- 
ington under different designations, as Clerks, Copyists, Messengers, 
Laborers, etc. The great body of Clerks are divided into classes known 
as first, second, third, and fourth. The first class receive $1,200 a year; 
the second, $1,400 ; the third, $1,600 ; and the fourth, $1,800. Female 
Clerks and Copyists generally receive $900 a year. Messengers, $840 ; 
Assistant Messengers, Watchmen, and Laborers, $720. 



THE JUDICIAL DEPARTMENT. 
CHIEF JUSTICES OF THE SUPREME COURT. 

A full account of the United States Courts has been given in 
a former part of this work. 

The following is a list of Chief Justices of the Supreme 
Court of the United States : 

John Jay, New York, appointed September 26th, 1789. 
He was confirmed Envoy Extraordinary to England, April 
19th, 1794. Resigned as Chief Justice. 



326 THE JUDICIAL DEPARTMENT. 

John Rutledge, South Carolina, appointed July 1st, 1795, 
in the recess of the Senate; presided at the August term of the 
Court. Rejected by the Senate, December 15th, 1795. 1 

Oliver Ellsworth, Connecticut, appointed March 4th, 
1796. Appointed Envoy Extraordinary and Minister Plenipo- 
tentiary to France, February 27th, 1799. Resigned as Chief 
Justice. 2 

John Marshall, Virginia, appointed January 31st, 1801. 
He held the office nearly thirty-five years, till his death, July 
6th, 1835. 

Roger B. Taney, Maryland, appointed March 15th, 1836. 
He presided twenty-eight years, till his death, October 12th, 
1864. 

Salmon P. Chase, Ohio, appointed December 6th, 1864. 
Died in office, May 7th, 1873. 

Morrison R. Waite, Ohio, appointed January 21st, 1874. 

For a list of the Associate Justices, see Appendix. 

The thirty-eight States are divided into nine Judicial Circuits, 
each having its own Circuit Judge, and to each one of which a 
Justice of the Supreme Court is allotted by order of that Court. 
The Circuits are as follows : 

1 st. Maine, Massachusetts, New Hampshire, Rhode Island. 

2d. Connecticut, New York, Vermont. 

3d. Pennsylvania, New Jersey, Delaware. 

4th. Maryland, West Virginia, Virginia, North Carolina, 
South Carolina. 

5th. Georgia, Florida, Alabama, Mississippi, Louisiana, 
Texas. 

6th. Ohio, Michigan, Kentucky, Tennessee. 

7th. Indiana, Illinois, Wisconsin. 



1 William Cushing, Massachusetts, then an Associate Justice, was appointed by the 
President and Senate January 27, 1796, but declined. He continued to serve as Asso- 
ciate till his death in 1810. 

2 John Jay, New York, was appointed by the President and Senate December 19, 
1800, but declined. 



COMPENSATION OF JUDGES. 327 

8th. Minnesota, Iowa, Missouri, Kansas, Arkansas, Ne- 
braska, Colorado. 

9th. California, Oregon, Nevada. 

In each organized Territory there are a Chief Judge and 
two Associates, appointed by the President and Senate for four 
years. 

The Marshal and Reporter of the Supreme Court are ap- 
pointed by the Court and receive salaries. 

The Attorney and Marshal for the District Courts, who are 
officers of the Circuit Courts also, are appointed by the Presi- 
dent and Senate. 

The salary of the Chief Justice of the Supreme Court is $10,500; that 
of each Associate Justice, $10,000. The Circuit Judges receive each 
$6,000, and the District Judges, fifty-one in number, from $3,500 to 
$5,000 each. 



CHAPTER VIII. 



THE STATE GOVERNMENTS. 



IN Chapter VI an account has been given of the twenty-five 
States which have been admitted to the Union since the 
adoption of the Constitution. The thirteen original States were 
colonies until the Declaration of Independence. 

Change from r 

Colonies to By that act the individual colonies were trans- 
states, formed into States, and the thirteen United Col- 
onies assumed their position as a Nation, under the name of the 
United States. The colonies had exercised some of the powers 
of government, while they acknowledged a common allegiance 
to Great Britain. ''By the Declaration of Independence the 
sovereignty of the thirteen colonies passed from the crown to 
the people dwelling in them, not as an aggregate body, but as 
forming States endowed with the functions necessary for their 
separate existence; also, States in Union." 1 

The Nation began its existence on the fourth day of July, 
1776; and on the same day each of the thirteen colonies was 
transformed into a State — became an integral part of the 
Nation. Each of the new States became such, when, having 
adopted a constitution, it was admitted into the Union by 
Congress. But the old thirteen did not become States by the 
formation of a constitution nor by a Congressional vote of ad- 
mission. They were made States by the Declaration of Inde- 
pendence. No one of the thirteen was a State prior to that 
day, though a few of them had established temporary forms of 



1 Frothingham, page 561. 
(328) 



NO STATES BEFORE THE DECLARATION. 329 

government by the recommendation of Congress. Each was a 
State from that day, though some formed no State constitutions 
until months, and, in some cases, years had elapsed. Massa- 
chusetts remained under her colonial charter till 1780, Connect- 
icut till 1 8 18, and Rhode Island till 1842. 

In the latter part of 1775 Congress had recommended to 
New Hampshire, South Carolina, and Virginia to modify their 
local governments, to "continue during the dis- . . 

pute with Great Britain." And in May, 1776, a of some of the 
like recommendation was made to "the several Colonies. 
colonies where no governments sufficient to the exigencies of 
their affairs had been established." In accordance with these 
recommendations New Hampshire, South Carolina, Virginia, 
and New Jersey — all being royal colonies — provided themselves 
with governments adapted to their necessities. But, in at least 
three of these four cases, the governments were expressly de- 
clared to be temporary, to continue until the unhappy differ- 
ences between Great Britain and America should be settled. 

Of the body that took this action in Virginia in 1776, Mr. 
Jefferson says : "They received in their creation no powers but 
what were given to every legislature before or since. They 
could not, therefore, pass an act transcendent to the powers of 
other legislatures." And of the instrument itself he says : "It 
pretends to no higher authority than the other ordinances of the 
same session." Such instruments could hardly be called con- 
stitutions. 

Including the four already mentioned, the thirteen local governments 
were modified, or established, as follows: 

New Hampshire, January 5> l 77&- 

South Carolina, March 26, 1776. 

Virginia, June 29, 1776. 

New Jersey, July 2, 1776. 

Delaware, September 20, 1776. 

Pennsylvania, September 28, 1776. 

Maryland, November 8, 1776. 

A. C— 28. 



33° THE STATE GOVERNMENTS. 

North Carolina, December 18,1776. 

Georgia, February 5, 1777. 

New York, April 20, 1 777. 

Massachusetts, March 2, 1780. 

Connecticut, September 16, 1818. 

Rhode Island, November 23, 1842. 

Most of the States have altered their constitutions, some of 
them a number of times. Connecticut and Rhode Island had 
no other constitutions than their colonial charters till 18 18 and 
1842; and the constitutions then adopted still remain. The 
constitution of 1820 of Massachusetts is still in force, though it 
has been frequently amended. 

The State constitutions resemble each other in their general 
provisions, while they differ in particulars. The Constitution 
of Ohio, adopted in 1851, may be taken as fairly illustrating 
the general principles of these instruments. It contains sixteen 
articles, as follows : 

I. Bill of Rights. 

II. Legislative. 

III. Executive. 

IV. Judicial. 

V. Elective Franchise. 

VI. Education. 

VII. Public Institutions. 

VIII. Public Debt and Public Works. 

IX. Militia. 

X. County and Township Organizations. 

XI. Apportionment : (a) Legislative ; {b) Judicial. 

XII. Finance and Taxation. 

XIII. Corporations. 

XIV. Jurisprudence. 
XV. Miscellaneous. 

XVI. Amendments. 

The Bill of Rights has twenty sections. These relate to 
the right of freedom and the protection of property, freedom 



THE CONSTITUTION OF OHIO. 33 1 

of speech and of the press, the rights of conscience, etc. 
Under the last head we find the following, taken in substance 
from the ordinance of 1787: "Religion, morality, and knowl- 
edge being essential to good government, it shall be the duty of 
the General Assembly to pass suitable laws to protect every 
religious denomination in the peaceable enjoyment of its own 
mode of public worship, and to encourage schools and the 
means of instruction." 

The twentieth section of the Bill of Rights is noteworthy as 
embodying in one sentence the substance of the ninth and 
tenth amendments of the Constitution of the United States. 
It is as follows : "This enumeration of rights shall not be con- 
strued to impair or deny others retained by the people ; and all 
powers, not herein delegated, remain with the people." It is 
sometimes said that while the powers of the United States gov- 
ernment are delegated powers, those of the State governments 
are not delegated but inherent. The constitution of Ohio cer- 
tainly gives no countenance to any such distinction. The 
people of Ohio say as explicitly as language can express that 
their State government possesses no powers not delegated in 
their constitution. In their relation to the people, the General 
government and the State government are precisely alike. 
Each government is one of delegated powers, and one as much 
so as the other. In each case the powers are delegated by the 
people : to the State government by the people of the State, to 
the National government by the people of the United States. 

The Legislative power is vested in a General Assembly, 
consisting of a Senate and House of Representatives, the mem- 
bers to be chosen every alternate year on the Tuesday after the 
first Monday in November. The regular sessions commence 
on the first Monday of January of the odd years, though there 
is always an adjourned session, making the sessions annual. 

The normal number of Representatives is one hundred, who 
are distributed at the beginning of each decade among the 
counties in such manner as to equalize the representation. In 



2,j2 THE ?TATE GOVERNMENTS. 

practice a county may have one Representative a part of a 
decade and two for the rest. And generally the whole number 
is a litde more or a little less than the normal number. The 
normal number of Senators is thirty-five, who are distributed in 
the same way as the Representatives. The apportionment is 
made by the Governor and the Secretary of State. 

A majority is a quorum in each House. The yeas and nays 
may be called at the desire of two members. The concurrence 
of a majority of all the members elected in each House is 
necessary to pass a bill. No bill shall contain more than one 
subject, which must be clearly expressed in its title. No new 
county shall contain less than 400 square miles, nor shall any 
county be reduced below that area, though a county of 100,000 
inhabitants may be divided with the approval of a majority* of 
voters in each division. The General Assembly can not grant 
a divorce or perform any judicial act not expressly authorized 
in the constitution. 

The Executive department consists of a Governor. Lieu- 
tenant-Governor. Secretary of State, Auditor, Treasurer, and 
an Attorney-General. They are elected by the people on the 
Tuesday after the first Monday in November: the Auditor for 
four years and the others for two. Their terms commence on 
the second Monday of January after their election. The Gov- 
ernor has no veto; but has power, after conviction, to grant 
reprieves and pardons. The order of Executive succession in 
case of vacancy is the same as formerly in the general govern- 
ment: the Lieutenant-Governor, the President of the Senate, 
and the Speaker of the House of Representatr 

Other State officers, provided for by law, are a Commissioner 
of Common Schools, Board of Public Works. Adjutant-General, 
Commissioner of Insurance, Secretary of the State Board of 
Agriculture, Board of State Charities, Railroad Commissioner, 
State Librarian, Trustees of Benevolent Institutions, etc. The 
School Commissioner is elected for three years, as also the 
Board of Public Works; the others are appointed. 



THE CONSTITUTION OF OHIO. 333 

The Judicial system proper consists of a Supreme Court, 
Circuit Courts, and Courts of Common Pleas. There are also 
Probate Courts, one in each county, and Justices of the Peace 
in each township. The General Assembly may establish other 
courts inferior to the Supreme Court. This has been done in 
the larger cities. 

There is one Supreme Court, with five Judges. The State is 
divided into seven judicial Circuits, with three Judges in each 
circuit. There are ten judicial Districts, each — excepting 
Hamilton County — divided into three subdivisions. There are 
then five Supreme Judges, twenty-one Circuit Judges, and 
seventy Judges of the Court of Common Pleas. 

The Probate Court is a court of record, held by one Judge, 
who is elected for three years by the voters of the county. As 
the term signifies, he has jurisdiction in the matter of wills and 
estates, the appointment of administrators and guardians, the 
settlement of their accounts, etc. Other jurisdiction may be 
given him by law, such as issuing marriage licenses, appointing 
school examiners, etc. He may have jurisdiction in certain mi- 
nor criminal offenses. 

Justices of the Peace are elected for three years by the voters of 
the township. This is not a court of record, though the justice 
keeps a docket. Sometimes a jury is summoned, and cases in- 
volving a specified limited amount may be appealed to the Court 
of Common Pleas. 

The Judges of the Supreme Court and those of the Court of 
Common Pleas are chosen for five years, and those of the Cir- 
cuit Court for six. Judges may be removed from, office by vote 
of two thirds of the elected members of each House, formal 
complaint having been made, and full opportunity to be heard 
being given. 

The Elective Franchise is limited to male citizens of the 
United States of the age of twenty-one years who have resided 
in the State one year, and in the county, township, or ward, 
such time as may be provided by law. No idiot or insane per- 



334 TH E STATE GOVERNMENTS. 

son may vote. All votes must be by ballot. The General 
Assembly may exclude from voting or holding office for in- 
famous crime. 

Two thirds of the States, like Ohio, limit voting to citizens of 
the United States. It is to be regretted that this practice is not 
universal. (See page 91.) 

In regard to Education the constitution provides that the 
principal of all funds granted or entrusted to the State for edu- 
cational and religious purposes shall forever be preserved in- 
violate, and the income faithfully applied to the specific objects 
of the grant. The General Assembly shall provide by taxation 
and otherwise for a thorough and efficient system of common 
schools throughout the State, but no religious sect or sects shall 
have any exclusive right to, or control of, any part of the 
school funds of the State. Though the office of School Com- 
missioner is not provided for in the constitution, it was estab- 
lished by law soon after the constitution went into effect. The 
income from State funds, whether from school lands or a State 
tax, is wholly expended upon the elementary schools, so that 
the higher schools are supported by local taxation. This is be- 
lieved to be better, both as to efficiency and economy, than for 
all the schools to depend upon the State treasury. 

Public Institutions, for the benefit of the insane, blind, 
deaf and dumb, must always be fostered and supported by the 
State. The directors of the Penitentiary are to be appointed as 
the General Assembly may direct ; but the trustees of the benev- 
olent and other State institutions are appointed by the Governor 
and Senate. 

The Public Debt of the State may not exceed $750,000, 
except in case of insurrection or invasion. The credit of the 
State shall not be given or loaned to any individual association, 
nor shall the State become a stockholder therein. The General 
Assembly can not authorize any county, city, town, or township 
to become a stockholder in, or loan its credit to, any associa- 
tion. A sinking-fund is provided for, and the Auditor, Secre- 



THE CONSTITUTION OF OHIO. 335 

tary of State, and Attorney-General are created a board under 
the style of "The Commissioners of the Sinking Fund." 

So long as the State has public works, as canals, needing 
superintendence, there shall be a Board of Public Works, 
consisting of three members, holding office for three years, one 
member being elected annually by the people. 

The Militia is composed of male citizens, residents of the 
State, between the ages of eighteen and forty-five. The law 
exempts certain classes from military duty. All military officers 
are elected by those who are subject to military duty, in their 
respective districts, and are commissioned by the Governor. 

COUNTY AND TOWNSHIP ORGANIZATIONS. 

Under this head the first section is: "The General Assembly 
shall provide by law for the election of such county and town- 
ship officers as may be necessary." County officers are to be 
elected on the Tuesday after the first Monday in November, and 
township officers on the first Monday in April. The former hold 
office not exceeding three years, and the latter not more than 
one year, excepting Township Trustees and Justices of the 
Peace, who are to be chosen for three years. 

The organization of Counties and Townships is thus left 
almost entirely to the General Assembly, though incidental ref- 
erence is made to the Sheriff and Treasurer, as also to the 
County Commissioners and the Township Trustees. 

It has been seen that the government of a State, as a whole, 
is in the main like that of the United States. The General 
Assembly with its Senate and House of Representatives is like 
Congress with its two Houses; the three classes of State Courts 
are similar to the three National Courts; and the Governor, 
Lieutenant-Governor, and other executive officers are like the 
President, Vice-president, Secretaries, etc., of the United States 
government. But there is nothing in our general government 
to correspond to the County and Township government in the 



33 6 THE STATE GOVERNMENTS 

. t t ■ we find the peculiar : a: a ::er of our 

local government, and these, there fire i-i-:- i -•- --• -Trhat 
careful consideration. 



COTNTT ©CWrERNMEXT. 

The State of Ohi : zrataaaaaa: _: ":•: -qnare miles ied 

into 88 con: a: : ;_" ~:~aa5a:a=. Thf .t are: ; :' i 

county is thus abc r. 1 _ s ^uare miles, and is number of town- 
ships average* :- The i area of a township in Ohio is 
a fraction over 30 square miles. Ac: :r : : . . : : art V : 
of ?.- : a township contains 36 square miles; but in the 
Mil: razr I a?rr: n and thf Wt 

: 7 tra . t : ; iart and in ta t '~:r: aaa ' 1 11: :ar; 1 
is no re. Indeed in most of the £7- rcate: art : a. 

townships often differ from the : ar 7 7 : 71:7 

called. 

All the States are divided into counties, but ir s : rr 7 
southern and south-wester: thf : ant - ided 

into townships. There are divisions for voting or judicial : ar- 
poses, smaller than counties and called by different mnmf-n 
Thus in Tenner : -. - . 1 7 _ : c 1 :ere: 

from 1 to 8 . 1 rraam Counrv - far such, from 1 to rr. la 

ainiaani ^"es: v :raaaa -.:-.- are called magisterial districts ; 
•Union Magisterial District."' in Wood County. West 
\ a a In Mississippi each : : _ary is divided into fha - 
sometin:7 'ecincname and sometua : anuria. 

Beat : ratrs.r 1 raatr But in ta 7 .-. andinsiaat 

others there are no tc~: : as the} are 

In the matter of local government there are two s^iAuwji in 
the United States. In New England the raaaar : aa<i 

civil township of Ohio, is the unit In the southern Stales the 
counh is the unit The Ohic 



- .::..;; _- -: : — . '_ - !►■>[. i : -me: .• -. : r ; . 
:i3D of are~. n ber of square miles ;i mi 



THE CONSTITUTION OF OHIO. 337 

these. It is neither the town system of the East nor the 
county system of the South. The county has more power than 
in New England, the township has less. No one has spoken 
more strongly in favor of the town system than Mr. Jefferson. 
He recommended the division of the counties of Virginia into 
wards of six miles square. "These wards," he says, "called 
townships in New England, are the vital principle of their gov- 
ernments, and have proved themselves the wisest invention ever 
devised by the wit of man for the perfect exercise of self-gov- 
ernment and for its preservation." 

The officers of the county are three Commissioners, a Judge 
of Probate, Clerk of the Court of Common Pleas, Auditor, 
Treasurer, Sheriff, Prosecuting Attorney, Recorder, Surveyor, 
Coroner, Infirmary Directors. These are all elected by the 
people, some for two years and some for three years. The 
Treasurer and Sheriff, whose terms are two years, are not eligible 
for more than four years in six. There is no restriction as to 
the others. 

The Commissioners are the general guardians of the in- 
terests of the county. All the public property of the county is 
under their charge, the county buildings are erected and repaired 
under their direction, State and county roads are laid out and 
constructed, and bridges built by them. They have the power 
to levy taxes for these purposes, the maximum rate depending 
upon the amount of taxable property. The Commissioners may 
change the boundaries of townships and form new ones. They 
can divide a township into election districts. 

New roads are built or old ones altered on petition of those 
interested, and on report of viewers appointed by the Commis- 
sioners. So township boundaries are altered on petition of 
those interested, and it is after a petition of a majority of voters 
that a township is divided into election districts. 

The Commissioners and the Auditor are a county board of 

equalization to equalize each year the valuation of townships, 

but they can not reduce the aggregate valuation of the county 
A. c— 29. 



338 THE STATE GOVERNMENTS. 

as determined by the State board. The Commissioners and the 
Surveyor are a decennial board of equalization to equalize the 
value of real estate, which is assessed every ten years. 

Most county officers make annual reports to the Commis- 
sioners, but these report to the Court of Common Pleas. A 
vacancy in the Board of Commissioners is filled by the Probate 
Judge, Auditor, and Recorder. The Auditor keeps the records 
of the proceedings of the Commissioners, and their regular 
meetings, which are quarterly, are held at his office. It will be 
seen that the duties of the Commissioners are of great responsi- 
bility, and the best men of the county should be selected for 
this office. Their term is three years, one being elected each year. 

The office of Probate Judge, who is elected for three years, 
has been considered under the head of the Judicial system. 

The Clerk of the Court of Common Pleas was called 
under the Territory the Prothonotary, and was appointed by the 
Governor. Under the first constitution each Court appointed 
its own clerk for a period of seven years. Since 1851 the office 
has been elective, and the term is three years. He preserves the 
papers, issues writs, and keeps the records of the Circuit Court 
as well as that of Common Pleas. The election returns of the 
county are made to him, so that he is in some sense the Clerk 
of the county; though the Auditor who keeps the records of 
the Commissioners has much to do with preserving an account 
of the public business of the county. 

The Auditor receives the returns of the assessors, and ap- 
portions the taxes among the tax-payers of the county. He 
prepares the list called the tax-duplicate for the Treasurer, whose 
chief duty it is to collect the taxes. The Auditor draws orders 
on the Treasurer, and no money is paid without his order. The 
efficiency of the Commissioners depends in considerable degree 
on the Auditor, who needs to be a man of intelligence, good 
judgment, and clear perception. The work of some officials is 
largely routine work, but mere excellence in routine could never 
suffice for an Auditor. He is elected for two years. 



THE CONSTITUTION OF OHIO. 339 

The County Treasurer receives all the taxes of the county; 
through many of the eastern States there is a collector for each 
township, and the money to be expended in the township does 
not go into the county treasury. But in Ohio and most western 
States, all taxes are paid to the county officer, and he pays out 
on the order of the Auditor to the several township treasurers, 
and to the treasurers of any cities or villages in the county. 
His term is two years, and he can serve but four years in six. 

The duty of the Sheriff is the same every-where. He is to 
preserve the peace of the county, to apprehend criminals and 
hold them in custody, to have the oversight of the county jail, 
to execute the orders of the Courts in the service of writs, etc. 
The term is two years, but by the constitution he can hold 
office only four years in six. 

All attorneys-at-law are officers of the Court, but the Prose- 
cuting Attorney of a county is specially so. He attends to 
the drawing up of indictments for the action of the grand jury, 
and to the prosecution before the Court of all criminals who 
have been indicted as well as those tried for minor offenses. 
Before 1833 this officer was appointed by the Court, but since 
then he has been elected by the people. His term is two years. 

The County Recorder keeps a record in permanent form 
of all deeds, mortgages, village plats, etc. A power of attorney, 
by which the owner of land authorizes another person to trans- 
fer it, must be recorded in order to make the title good. There 
is no better system of record in any country, yet many persons 
are very negligent, letting deeds and mortgages made to them 
remain unrecorded for months and perhaps for years. The 
Recorder is paid with fees prescribed by law. He is elected for 
three years. 

The County Surveyor is elected, his term being three 
years. Early in the century he was appointed by the Court, as 
was also the Recorder. 

The principal duty of the Coroner is to hold inquest — with 
or without the assistance of a jury as he may determine — in 



34-0 THE STATE GOVERNMENTS. 

cases of death by violence. Formerly, if the office of the 
sheriff was vacant, or the sheriff was a party in a suit, the 
coroner was required to take his place; but that provision no 
longer exists. The office is elective and the term is two years. 

The Infirmary Directors have charge of those poor of 
the county who are entirely dependent. Formerly there were 
Overseers of the Poor in each township, but now each county 
has its County Infirmary. This name was substituted for 
"County Poorhouse " by the General Assembly in 1850. 
There are three directors, serving for three years, one being 
elected each year. Prior to 1842 the directors were appointed 
by the Commissioners. 

In 1866 an act was passed authorizing the Commissioners of 
any county to establish Children's Homes and provide for their 
support by taxation The Trustees of the Home are ap- 
pointed by the Commissioners for three years, one being ap 
pointed each year. 

TOWNSHIP GOVERNMENT. 

The Township officers are : Trustees, Clerk, Treasurer, Jus- 
tices of the Peace, School Directors, Assessors, Supervisors, 
Constables. 

The Trustees are to the township what the Commissioners 
are to the county. They are the legal guardians of the public 
interests of the township. They are like the Selectmen of the 
New England town. Their term of office is three years, one 
being elected each year. With all the other township officers 
they are elected on the first Monday in April. The Township 
Trustees may to a limited extent levy taxes; they open town- 
ship roads on petition; divide the township into road districts; 
have charge of the poor who are not in the County Infirmary; 
may purchase and care for cemeteries ; select jurors ; build and 
repair bridges where the expenditure is small ; act as judges of 
elections; determine the number of constables for the town- 
ship. 



THE CONSTITUTION OF OHIO. 34I 

The Clerk of the township is the clerk of the Trustees. He 
attends their meetings, keeps the records of their proceedings, 
and draws orders on the treasury for whatever appropriations 
are made by them. He is also clerk of the township board of 
education, and draws orders for the pay of teachers on the cer- 
tificate of the local directors. 

The Treasurer receives from the County Treasurer the 
moneys belonging to the township, and makes payments on 
orders drawn by the clerk in accordance with the action of the 
Trustees. He is the treasurer of the school funds also, paying 
out moneys on the order of the clerk. He is paid a small 
commission for disbursing the funds. 

The Justices of the Peace have already been considered 
under the head of the Judicial system. They are elected for 
three years. 

For school purposes a township is divided into districts, in 
each of which three Directors are elected, one each year. 
The clerks of these local boards constitute the Township 
Board of Education. This body may issue bonds, by a 
vote of the electors, to buy land and erect buildings. They 
are the legal owners of all the school property of the township, 
and, in theory have the direction of the schools. Practically, 
however, each sub-district manages its own school matters. 
Earnest efforts have been made for years by the State School 
Commissioner and the most intelligent friends of education, 
to place all the schools of each township under the entire 
control of a single board, as is done in all our cities and towns. 
With little or no additional expense each township might in this 
way give its young people the advantages of a high school 
education. 

The Assessor, who is elected annually, is to ascertain the 
amount and value of all the personal property of each person 
in the township and report the same to the County Auditor. 
The assessment of real estate is made every ten years by 
assessors elected for that purpose. The assessment of personal 



THE STATE GOVERNMENTS 

prccr/-; is often very imperfectly performed through the in- 
competency of the assessors. The public interest would be 
greatly promoted if the assessors were appointed by some com- 
petent board, instead of being elected. 

It is the duty* of the Supervisors to keep in order the roads 
of the township. They are elected annually, by districts, and 
each supervisor has charge of the roads in his district. Every 
male adult is required to furnish two days' work under the 
direction of the supervisor or pay three dollars. The road 
rm in its practical working is often very defective, though 
there is a great difference between counties. A competent 
road engineer should be employed in every county or smaller 
district, under whose direction all road work should be done, 
whether of construction, or altering, or keeping in repair. 
Time and money enough have been expended within the last 
twer. is to give every- county in the State a sufficiency of 

excellent roai 

The Constable is a police and ministerial officer. He 
arrests criminals, serves writs and other notices, subpoenas wit- 
nesses, summons those drawn as jurors, etc. He is the minis- 
terial officer of the court of the justice of the peace, as the 
sheriff is of the higher courts. 

The subject of Apportionment, so far as regards Senators 
and Representatives, has already been considered: and the 
Constitution having been amended as to the Judiciary, Judicial 
apportionment needs no consideration. 

FINANCE AND TAXATION. 

A poll tax being deemed grievous and oppressive, it can not 
be levied for State or county purposes. The two days' work on 
the road is a virtual poll tax for township purposes. All prop- 
erty, real and personal, is to be taxed at its true value in 
money : the public property-, that used for educational, charita- 
ble, and religious purpose _;5onal property not exceeding 
$50 for each person, may be exempted from taxation. 



THE CONSTITUTION OF OHIO. 343 

Real estate is assessed only once in ten years, though the 
value of new buildings, additions, etc., is placed on the dupli- 
cate as the improvements are made. Personal property is 
returned every year. The returns of the assessors are made to 
the county auditors, and these make returns to the Auditor of the 
State. Equalization is made by State, county, and city boards, 
and then the duplicates are given to the county treasurers for 
collection. Each person may deduct his debts from his credits 
but not from money or any other property. The whole tax 
may be paid in December ; or, if preferred, one half then and 
the remainder in the June following. 

The State is forbidden by the constitution to contract any 
debt for internal improvement. 

CORPORATIONS 

Are to be formed under general laws ; not by special acts. 

Each stockholder in a corporation is liable, above the stock 
owned by him, to an additional sum equal in amount to his 
stock. 

"The General Assembly shall provide for the organization 
of cities and incorporated villages by general laws." 

In all States, communities with a compact population, known 
as cities, towns, and villages, are provided with governments 
adapted to their peculiar circumstances. The ordinary town- 
ship government is inadequate for such communities. 

In Ohio there are two classes of villages and two of cities, 
and these are divided into grades according to population. 
There are three grades of cities of the first class and four of 
the second. A city of the lowest grade — fourth grade of the 
second class — has a population between 5,000 and 10,000. 
Then come villages, the minimum population being 300. 

The officers of a city or incorporated village in Ohio are 
usually a Mayor, Council, Solicitor, Marshal, Board of Educa- 
tion, City Surveyor or Engineer, and Street Commissioner. 



344 THE STATE GOVERNMENTS. 

The Mayor is the executive officer. He has to some extent 
the appointing power, and acts as a judicial officer before whom 
those violating the city ordinances are brought. 

In Cincinnati there are three Judges of a local court called 
the Superior Court. 

The Council is composed of two members from each ward, 
elected for two years. They are the legal guardians of the 
public interests of the city ; and are clothed with large power. 
They enact ordinances for the government of the city, provide 
city buildings, grade streets and sidewalks, build bridges, supply 
gas and water, etc., etc. 

The Solicitor is the law officer of the city, drawing ordi- 
nances, contracts, etc. 

The Marshal is the principal police officer of the smaller 
cities. The mayor may appoint additional policemen. In the 
larger cities the police establishment embraces many men, and 
for its efficient management requires an elaborate system. 

The Board of Education have the charge of the public 
schools, which are brought into one system with a Superintend- 
ent at its head. They have the power of taxation within 
defined limits. For a special tax for the erection of buildings 
a vote of the people is necessary. 

The Surveyor and the Street Commissioner carry out 
the ordinances and resolutions of the Council as to bridges, 
streets, sidewalks, etc. The members of the Board of Educa- 
tion are chosen for three years, the other city officers generally 
for two years. 

Article XIV, on Jurisprudence, provided for the appoint- 
ment by the General Assembly at its first session of three Com- 
missioners to revise and simplify the practice, pleadings, etc., 
of the courts of record of the State. 

Under the head Miscellaneous (Article XV.,) are these, 
among other provisions : 

No person shall be elected or appointed to any office unless 
he have the qualifications of an elector. 



THE CONSTITUTION OF OHIO. 345 

Duelists and those aiding or abetting them can not hold 
office. 

Lotteries and the sale of lottery tickets are forever pro- 
hibited. 

A bureau of statistics may be established in the Secretary of 
State's office. 

Amendments to the constitution are provided for by 
Article XVI. They may be proposed by either branch of the 
legislature. If agreed to by three fifths of the members elected 
to each House, they shall be published in each county for six 
months before the next election of Senators and Representa- 
tives, at which time they shall be submitted to the electors. If 
adopted by a majority of votes cast at such election, they be- 
come a part of the constitution. If more than one be sub- 
mitted at the same time they must be voted on separately. 

A convention to revise the constitution may be called when- 
ever two thirds of the elected members of each House shall 
recommend it to the people and the electors shall so vote. 
The convention shall consist of as many members as the House 
of Representatives. Every twentieth year the question of a 
convention is to be submitted to the people, and one is to be 
held if a majority vote for it. No amendments so made shall 
have the force of laws until adopted by a majority of those 
voting thereon. 

Under this clause a convention was called in 187 1, but the 
constitution as amended by them was rejected by the people. 
Amendments proposed by the General Assembly have been 
adopted, but no convention has been called in consequence of 
a two thirds vote of that body. 

This account of the State government of Ohio will give a 
general idea of the governments of the other States. They 
differ in many minor particulars, as the power of the Executive, 
the right of suffrage, the term of office, the mode of election 
of judges, etc. 



346 THE STATE GOVERNMENTS. 

In the New England States the Senators and Reprcstnta- 
were formerly elected annually, but recently some 
States have adopted the biennial system. In a number of 
States the Senators are elected for a longer period than the 
Representatives. The House of Representatives is usually 
larger than the Senate, — generally about as three to one. In 
some States the ratio is much larger than that. In most States 
the two Houses are called the General Assembly, as in Ohio. 
In Massachusetts and New Hampshire the colonial style, the 
General Court, is still used. In New York the lower House is 
called the Assembly, and in Virginia and West Virginia it is 
called the House of Delegates. 

The Judges of the Supreme Court are in some States elected 
by the people, and in others by the legislature. Other States, 
Maine, New Hampshire, and Massachusetts, provide for an 
appointment by the Governor and Council ; some others, by the 
Governor and the Senate. Their term of office ranges from 
one year to life (good behavior). The longest specified term is 
in Pennsylvania — twenty-one years. In this last State they are 
not re-eligible. 

In a number of States suffrage was formerly limited to 
"white" persons, but the Fifteenth Amendment to the Consti- 
tution renders this limitation inoperative. Twenty-five States 
require the voter to be a citizen of the United States ; the re- 
maining thirteen make the legal declaration of intention to 
become a citizen sufficient. A residence of one year in the 
State is required in twenty-five States, though a number make 
six months sufficient ; Maine and Michigan have three months, 
and Kentucky requires two years. Georgia, Nevada, Mas- 
sachusetts, and New Hampshire make the payment of taxes a 
requisite for voting, except in certain cases. The same is the 
case in Delaware for those over twenty-two years of age. In 
Connecticut those can not vote who are ' ' unable to read an 
article in the constitution or any section of the statutes of the 
State " ; and in Massachusetts, those ' ' unable to read the con- 



THE CONSTITUTION OF OHIO. 347 

stitution in the English language, and write their names, unless 
prevented by physical debility, or over sixty years of age when 
the constitution was adopted." Fifteen States exclude from 
suffrage those who are insane ; ten, those who are idiotic ; seven, 
those who are " non compos mentis" or "of misound mind" ; 
eight, those under guardianship ; seven, those who are paupers ; 
one, those supported in an alms-house or asylum. 

These particulars give a general idea of the sphere of the 
State governments, and show in what respects their constitu- 
tions differ. It will be seen that, ordinarily, the citizen has a 
more direct and personal relation to the laws of the State than 
to those of the Nation. For many years prior to the recent 
war we were conscious of our relation to the Nation chiefly by 
our Congressional and Presidential elections. Taxes were paid 
to the State officials, and the laws which regulated the daily life 
of the people came from the State legislatures and not from 
Congress. But during the war the Nation became to every 
man a distinct reality. 

In general, the State governments have to do with matters 
that are local and municipal, in distinction from those which 
are general and National. The well-being of the people is of 
course dependent upon both governments, though State legisla- 
tion bears more directly than National upon their prosperity 
and happiness. There are some matters controlled by the 
States in regard to which uniformity is desirable; as, for 
example, the descent of property. It is unfortunate that a will, 
made and executed according to the forms of law in one State 
should subsequently be found to be invalid because the death 
of the testator had occurred in another State to which he had 
removed. 

The American people thus constitute one Nation with whom 
is the sovereignty ; but they have a government which is two- 
fold — exists in two departments. To each of these depart- 
ments the Nation has committed certain governmental trusts. 



THE STATE GOVERNMENTS. 

It might have distributed these trusts differently — given more to 
the one and less to the other. The Nation may alter the distri- 
bution when it pleases; for, strictly, the sovereignty does not 
belong to the government of a Nation, but to the Nation itself, 
which has established the government The people are un- 
doubtedly competent to change the character of the govern- 
ment, and give it such form as they may think will most 
promote their interests. But as the people of the United States 
are also the people of the States severally, we may rest satisfied 
that no change will ever be made which the people of the 
States do not believe will be for their common good. 



APPENDIX. 



(349) 



APPENDIX. 



The following is the list of Vice-presidents : 

John Adams, 1789 to 1797. 

Thomas Jefferson, 1797 to 1801. 

Aaron Burr, 1801 to 1805. 

George Clinton, 1805 to 181 2. * 

Elbridge Gerry, 1813 to 1814. 2 

Daniel D. Tompkins, 1817 to 1825. 

John C. Calhoun, 1825 to 1832. 3 

Martin Van Buren, 1833 to 1837. 

Richard M. Johnson, 1837 to 1841. 

John Tyler, 1841 to 1841. 4 

George M. Dallas, * 1845 t0 1849. 

Millard Fillmore, 1849 to 1850. 5 

William R. King, 1853 to 1853. 6 

John C. Breckenridge, 1857 to 1861. 

Hannibal Hamlin, 1861 to 1865. 

Andrew Johnson, 1865 to 1865. 7 

Schuyler Colfax, 1869 to 1873. 

Henry Wilson, 1873 t0 l8 75- 8 

William A. Wheeler, 1877 to 1881. 

Chester A. Arthur, 1881 to 1881. 9 

Thomas A. Hendricks, 1885 to 1885.10 



1 Died April 20, 1812. 2 Died Nov. 23, 1814. 3 Resigned Dec. 28, 1832. 

4 Became President April 6, 1841. 5 Became President July 9, 1850. 

6 Died April 18, 1853. 7 Became President April 15, 1865. 

8 Died Nov. 23, 1875. 9 Became President Sept. 20, 1881. 

10 Died Nov. 25, 1885. 

(1) 



11 



APPENDIX. 



Senators who have presided over the Senate as Presidents 
pro tempore when there was no Vice-president: 

William H. Crawford, after the death of George Clinton. 

John Gaillard, after the death of Elbridge Gerry. 

Hugh L. White, after the resignation of John C. Calhoun. 

Samuel L. Southard, -» 

Willie P. Mangum, } durin S the Residency of John Tyler. 

William R. King, during the Presidency of Millard Fillmore. 

David R. Atchison, -\ 

t t% r> • ii \ after the death of W. R. King. 

Jesse D. Bright, f & 

Lafayette S. Foster, ^ 

Benjamin F. Wade, } durin S the Presidenc y of Andrew Johnson. 

Thomas W. Ferry, after the death of Henry Wilson. 

David Davis, - ■) 

C F FH d r during the Presidency of C. A. Arthur. 

John Sherman, ^ 

j , T T \\ \ after the death of Thomas A. Hendricks. 



.AKERS 


of the House of Repr 


ESENTATIT 


1st Congress, F. A. Muhlenberg, 


Penn 


2d 


" Jonathan Trumbull, 


Conn 


3d 


" F. A. Muhlenberg, 


Penn 


4th 


' Jonathan Dayton, 


N.J. 


5 th 


' Jonathan Dayton, 


N.J. 


6th 


' Theodore Sedgwick, 


Mass. 


7th 


' Nathaniel Macon, 


N. C. 


8th ' 


' Nathaniel Macon, 


N. C. 


9th 


' Nathaniel Macon, 


N. C. 


loth « 


1 Joseph B. Varnum, 


Mass. 


nth 


' Joseph B. Varnum, 


Mass. 


1 2th « 


' Henry Clay, 


Ky. 


I3th 


/ Henry Clay, 

v. Langdon Cheves, 


Ky. 


S. C. 


14th 


' Henry Clay, 


Ky. 


15th 


* Henry Clay, 


Ky. 


16th 


r Henry Clay, 

\ John W. Taylor, 


Ky. 


N. Y. 


17th 


P. P. Barbour, 


Va. 


1 8th 


" Henry Clay, 


Ky. 





APPENDIX. 




19th Congress, John W. Taylor, 


N. Y. 


20th ' 


* Andrew Stevenson, 


Va. 


21st ' 


' Andrew Stevenson, 


Va. 


22d « 


' Andrew Stevenson, 


Va. 




c Andrew Stevenson, 
\ John Bell, 


Va. 


23d « 


Tenn. 


24th ' 


' James K. Polk, 


Tenn. 


25th ' 


' James K. Polk, 


Tenn. 


26th « 


* R. M. T. Hunter, 


Va. 


27 th ' 


1 John White, 


Ky. 


28th 


' John W. Jones, 


Va. 


29th • 


* John W. Davis, 


Ind. 


30th 


' Robert C. Winthrop, 


Mass. 


31st, 


' Howell Cobb, 


Ga. 


3 2d 


' Linn Boyd, 


Ky. 


33d 


' Linn Boyd, 


Ky. 


34th ' 


' Nathaniel P. Banks, 


Mass. 


35th « 


' James L. Orr, 


S. C. 


36th ' 


' William Pennington, 


N.J. 


37th ' 


' Galusha A. Grow, 


Penn. 


38th < 


* Schuyler Colfax, 


Ind. 


39th ' 


' Schuyler Colfax, 


Ind. 


40th « 


' Schuyler Colfax, 


Ind. 


41st ' 


* James G. Blaine, 


Maine. 


42d ' 


1 James G. Blaine, 


Maine. 


43d 


' James G. Blaine, 


Maine. 




f Michael C. Kerr, 


Ind. 


44th « 


I Samuel J. Randall, 


Penn. 


45th ' 


« Samuel J. Randall, 


Penn. 


46th ' 


' Samuel J. Randall, 


Penn. 


47th < 


' Joseph Warren Keifer, 


Ohio. 


48th 


' John G. Carlisle, 


Ky. 


49th « 


« John G. Carlisle, 


Ky. 




Secretaries of State. 




Thomas Jeffersc 


in, Va., appointed Sept. 26, 1789. 


Edmund Rand 


olph, Va., 


Jan. 2, 1794. 


Timothy Pickei 


•ing, Mass., " 


Dec. 10, 1795. 


John Marshall, 


Va., 


May 13, 1800. 


A. C— 30. 







Ill 



IV 





APPENDIX 


James Madison, 


Va., 


Robert Smith, 


Md., 


James Monroe, 


Va., 


John Q. Adams, 


Mass., 


Henry Clay, 


Ky., 


Martin Van Buren, 


X. v., 


Edward Livingston, 


La., 


Louis McLane, 


Del., 


John Forsyth, 


Ga., 


Daniel Webster, 


Mass. , 


Hugh S. Legare, ad int., 


S. C, 


Abel P. Upshur, 


Va., 


John C. Calhoun, 


S. C, 


James Buchanan, 


Penn., 


John M. Clayton, 


Del., 


Daniel Webster, 


Mass., 


Edward Everett, 


Mass., 


William L. Marcy, 


N. V., 


Lewis Ca 


Mich., 


Jeremiah S. Black, 


Penn., 


William H. Seward, 


N. Y., 


Eiihu B. Washburne, 


111., 


Hamilton Fish. 


X. v., 


William M. Evarts, 


x. v., 


James G. Blaine, 


Me., 


Frederick T. Frelinghuysen, X. J., 


Thomas F. Bayard, 


Del., 



<( 



appointed March 5, 1S01. 
" March 6, 1809. 

April 2, 1S11. 

March 5, 1S17. 

March 7, 1S25. 

March 6, 1S29. 

May 24, 1 S3 1. 

May 29, 1S53. 
June 27, 1S34. 

March 5, 1S41. 

May 9, 1S43. 
July 24. 1S43. 
March 6, 1S44. 
March 5, 1S45. 
March 7, 1S49. 
July 22, 1S50. 
Nov. 6, 1852. 
March 7, 1853. 
March 6, 1857. 
Dec. 17, i860. 
March 5, 1861. 
March 5, 1S69. 
March 1 1, 1S69. 
March 12, 1877. 
March 5, 1SS1. 
Dec. 12, 1SS1. 
March 6, 1SS5. 

It will be seen that six of these afterwards were elected to 
the Presidency; viz., Jefferson, Madison, Monroe, J. Q. 
Adams. Van Buren, and Buchanan. Three — Madison. Mon- 
roe, and Adams, passed from the office of Secretary of State 
to that of President. 



a 



Secretaries of the Treasury. 



Alexander Hamilton, X. Y., 

Oliver Wolcott, Conn., 

Samuel Dexter, Mass., 



appointed Sept. 11, 17S9. 
Feb. 3, 1795. 
" Dec. 31, 1S00. 





APPENDIX, 






Albert Gallatin, 


Penn., 


appointed May 14, 1801. 


George W. Campbell, 


Tenn., 


(< 


Feb. 9, 1814. 


Alexander J. Dallas, 


Penn., 


(< 


Oct. 6, 1814. 


"William H. Crawford, 


Ga., 


<< 


Oct. 22, 1816. 


Richard Rush, 


Penn., 


<< 


March 7, 1825. 


Samuel D. Ingham, 


Penn., 


<< 


March 6, 1829. 


Louis McLane, 


Del., 


it 


Aug. 8, 1831. 


William J. Duane, 


Penn., 


tt 


May 29, 1833. 


Roger B. Taney, 


Md., 


<( 


Sept. 23, 1833. * 


Levi Woodbury, 


N. H., 


tt 


June 27, 1834. 


Thomas Ewing, 


Ohio, 


a 


March 5, 1841. 


Walter Forward, 


Penn., 


it 


Sept. 13, 1841. 


John C. Spencer, 


N. Y., 


tt 


March 3, 1843. 


George M. Bibb, 


Ky., 


tt 


June 15, 1844. 


Robert J. Walker, 


Miss., 


tt 


March 5, 1845. 


William M. Meredith, 


Penn., 


a 


March 8, 1849. 


Thomas Corwin, 


Ohio, 


(( 


July 23, 1850. 


James Guthrie, 


Ky., 


tt 


March 7, 1853. 


Howell Cobb, 


Ga., 


a 


March 6, 1857. 


Phillip F. Thomas, 


Md., 


tt 


Dec. 12, i860. 


John A. Dix, 


N. Y., 


it 


Jan. 11, 1861. 


Salmon P. Chase, 


Ohio, 


tt 


March 7, 1861. 


William P. Fessenden, 


Maine, 


tt 


July 1, 1864. 


Hugh McCulloch, 


Ind., 


tt 


March 7, 1865. 


Alexander T. Stewart, 


N. Y., 


it 


March 5, 1869. 2 


George S. Boutwell, 


Mass., 


tt 


March 11, 1869. 


William A. Richardson, 


Mass., 


tt 


March 17, 1873. 


Benjamin H. Bristow, 


Ky., 


tt 


June 4, 1874. 


Lot M. Morrill, 


Maine, 


tt 


July 7, 1876. 


John Sherman, 


Ohio, 


it 


March 8, 1877. 


William Windom, 


Minn., 


tt 


March 5, 1881. 


Charles J. Folger, 


N. Y., 


tt 


Oct. 27, 1881. 


Walter Q. Gresham, 


Ind., 


a 


Sept. 24, 1884. 


Hugh McCulloch, 


Ind., 


tt 


Oct. 28, 1884. 


Daniel Manning, 


N. Y., 


it 


March 6, 1885. 


Charles S. Fairchild, 


N. Y., 


tt 


March 31, 1887. 



1 Rejected by the Senate. 

2 Resigned, being ineligible as an importer. 



Yl 



A77INi:X. 



5z:? z 


...-..-.. ^ r 


:? 'V a t. 


He:r K::x. 


MliS.. 


111 ::x:e i 


Tin : ±7 ?::lt::ir. 


11 lii.. 


M 


f : li I'UFieriry. 


Bid., 


CC 


' : In M ins 1 ill 


Va., 


M 


M— :t". 1 =x:er. 


1-1 lii . 




F.rt: l-r.«~:li. 


1 .1.1... 


M 


Htnry 1 til: :~. 


11 1-1. 


(C 


W.lli- Fii:;5. 


11 lii . 


.. 


. -' - - A ~ — " 5 : r : x r . 


M V 


M 


fines 11 :x:: t. 


Va., 


M 


" llliam H. Crawford, 


1:1.. 


M 


1 5.1.1: Sltl: ;i 


Ky., 


« 


lr:::e Irixim . 


" 


(C 


f :lx I. H:lx:_x. 


5 :.. 


H 


f irxti Fir": : xr. 


Va., 


M 


Ft::: I ?:r:er. 


M Y., 


ce 


f:xx H. I::::. 


Texx.. 


M 


It". 5 lli.5- 


11:1.. 


M 


Iti irxix F. Fixer. 


M 


ce 


JoelR- Poinsett, 


5 :.. 


CC 


f :xx I til 


_ 1 11 . . 




f : xx M:ltix. 


Ohio, 


ce 


~ :'"- - SjrZlrr. 


M 


cc 


fines 11 1 :::tr. 


?:".. 


ce 


•■■linn "" : :vi-». 


Itll . 


ce 


William L. Marcy, 


X 




George W. Crawford, 


1:1- . 


.. 


Charles M. Conrad, 


1.1. . 


ce 


f ext.i :x 1 11 5. 


11-5 . 


cc 


":::Z ~:t1 


Va 


.. 


f :5ei'x H:lx 


" 


ce 


nmx l:r:::i 


r txx . 


ce 


1:1: 11 r:ix::x. 


rtz.-.. 


cc 



fti: :: :- ; : 

Jan. 27, 1796. 
lli ~. 1800. 1 
May 13, 1800. 

Ft: 1 :5ci.- 
Mirlx 5. :>cr. 
March 7, 1809. 
Jan. 13, 181; 
Sep! :-, 1814. 
Mn:l 5. 1S15. 
l-lii:! 5. :5:-. : 
Aixl _ . :>:-. 
Oct. 8, 1817 
Mir:i ". :5::. 
M17 ::. ifri. 
Mirlx :. :>::. 
Ang. 1, 1831. 
Vn:l :. 1S5-. 
Mir:"- ". I Sj 7. 
March 5, 1841. 

Oct. 12, 1841. 
March 8, 1843. 

Ft':. ::. :5_lx. 
Mir;"- 5. iS-if. 
March 8, 1849. 
Ang. 15, 1850. 
Mir:l 5. :>:;. 
March 6, 1857. 
fin. :S :::: 
Mir:l 5. :S:: 
Jan. 15, 1862. * 





APPENDIX. 






Ulysses S. Grant, ad inf., 


111., 


appointed 


Aug. 12, 


1867. 


Edwin M. Stanton, 


Penn., 


t< 


Jan. 13, 


1868. 1 


John M. Schofield, 


Mo., 


<< 


May 28, 


1868. 


John A. Rawlins, 


111., 


n 


March 11, 1869, 


Wm. T. Sherman, ad int. , 


, Ohio, 


tt 


Sept. 9, 


1869. 


William W. Belknap, 


Iowa, 


a 


Oct. 25, 


1869. 


Alphonso Taft, 


Ohio, 


(( 


March 8, 


1876. 


J. Donald Cameron, 


Penn., 


(< 


May 22, 


1876. 


George W. McCrary, 


Iowa, 


a 


March 12, 1877, 


Alexander Ramsey, 


Wis., 


n 


Dec. 10, 


1879. 


Robert T. Lincoln, 


111., 


(< 


March 5, 


1881. 


William C. Endicott, 


Mass., 


<( 


March 6, 


1885. 



VII 



Secretaries of the Navy. 



George Cabot, 


Mass., 


appointed 


Benjamin Stoddert, 


Md., 


<< 


Robert Smith, 


Md., 


«« 


Jacob Crowninshield, 


Mass., 


<( 


Paul Hamilton, 


S. C, 


(< 


William Jones, 


Penn., 


<« 


B. W. Crowninshield, 


Mass., 


<< 


Smith Thompson, 


N. Y., 


(< 


John Rodgers, 


Md., 


(< 


Samuel L. Southard, 


N. J., 


c< 


John Branch, 


N. C, 


< t 


Levi Woodbury, 


N. H., 


tt 


Mahlon Dickerson, 


N. J., 


<( 


James K. Paulding, 


N. Y., 


<< 


George E. Badger, 


N. C, 


tt 


Abel P. Upshur, 


Va., 


tt 


David Henshaw, 


Mass., 


(« 


Thomas W. Gilmer, 


Va., 


<( 


John Y. Mason, 


Va., 


«« 


George Bancroft, 


Mass., 


<( 


John Y. Mason, 


Va., 
2 Dec 


< ( 


1 Restored by the Senate. 


:lined. 



May 3, 1 798.2 
May 21, 1798. 
July 15, 1801. 
March 2, 1805. 
March 7, 1809. 
Jan. 12, 1813. 
Dec. 17, 1814. 
Nov. 9, 1818. 
Sept. 1, 1823. 2 
Sept. 16, 1823. 
March 9, 1829. 
May 23, 1 83 1. 
June 30, 1834. 
June 30, 1838. 
March 5, 1841. 
Sept. 13, 1841. 
July 24, 1843. 
Feb. 15, 1844. 
March 14, 1844. 
March 10, 1845. 
Sept. 9, 1846. 



vm 





APPENDIX. 




William B. Preston, 


Va., 


appointed 


March 8, 1849. 


William A. Graham, 


N. C, 


(< 


July 22, 1850. 


John P. Kennedy, 


Md., 


(< 


July 22, 1852. 


James C. Dobbin, 


N. C, 


(< 


March 7, 1853. 


Isaac Toucey, 


Conn., 


«< 


March 6, 1857. 


Gideon Welles, 


Conn., 


(< 


March 5, 1861. 


Adolph E. Borie, 


Penn., 


<< 


March 5, 1869. 


George M. Robeson, 


N.J., 


<« 


June 25, 1869. 


Richard W. Thompson, 


Ind., 


<( 


March 12, 1877, 


Nathan Goff, 


W. Va. 


> 


Jan. 6, 1881. 


William H. Hunt, 


La., 


<< 


March 5, 1881. 


William E. Chandler, 


N. H., 


(< 


April 1, 1882. 


William C. Whitney, 


N. Y., 


<( 


March 6, 1885. 



Secretaries of the Interior. 



Thomas Ewing, 
Alexander H. H. Stuart, 
Robert McClelland, 
Jacob Thompson, 
Caleb B. Smith, 
John P. Usher, 
James Harlan, 
Orville H. Browning, 
Jacob D. Cox, 
Columbus Delano, 
Zachariah Chandler, 
Carl Schurz, 
Samuel J. Kirkwood, 
Henry M. Teller, 
Lucius Q. C. Lamar, 



Ohio, 


appointed 


March 7, 1849. 


, Va., 


<( 


Sept. 12, 1850. 


Mich., 


<( 


March 7, 1853. 


Miss., 


c< 


March 6, 1857. 1 


Ind., 


tt 


March 5, 1861. 


Ind., 


tt 


Jan. 8, 1863. 


Iowa, 


c< 


May 15, 1865. 


111., 


(< 


July 27, 1866. 


Ohio, 


11 


March 5, 1869. 


Ohio, 


<« 


Nov. 1, 1870. 


Mich., 


<< 


Oct. 19, 1875. 


Mo., 


<( 


March 12, 1877. 


Iowa, 


<( 


March 5, 1881. 


Col., 


<< 


April 6, 1882. 


Miss., 


<( 


March 6, 1885. 



Postmasters-General. 



Samuel Osgood, 
Timothy Pickering, 
Joseph Habersham, 



Mass., appointed Sept. 26, 1789- 
Mass., " Aug. 12, 1791. 

Ga., " Feb. 25, 1795. 



1 Resigned Jan. 8, 1861. 





APPENDIX. 






Gideon Granger, 


Conn., 


appoin 


ted Nov. 28, 1 801. 


Return J. Meigs, Jr., 


Ohio, 


<« 


March 1 7, 1814, 


John McLean, 


Ohio, 


tt 


June 26, 1823. 


William T. Barry, 


Ky., 


tt 


March 9, 1829. 


Amos Kendall, 


Ky., 


it 


May 1, 1835. 


John M. Niles, 


Conn., 


<( 


May 25, 1840. 


Francis Granger, 


N. Y., 


tt 


March 6, 1841. 


Charles A. Wickliffe, 


Ky., 


(< 


Sept. 13, 1841. 


Cave Johnson, 


Tenn., 


«< 


March 5, 1845. 


Jacob Collamer, 


Vt., 


tt 


March 7, 1849. 


Nathan K. Hall, 


N. Y., 


a 


July 20, 1850. 


Samuel D. Hubbard, 


Conn., 


it 


Aug. 31, 1852. 


James Campbell, 


Penn., 


a 


March 7, 1853. 


Aaron V. Brown, 


Tenn., 


tt 


March 6, 1857. 


Joseph Holt, 


Ky., 


tt 


March 14, 1859. 


Horatio King, 


N. H., 


tt 


Feb. 12, 1861. 


Montgomery Blair, 


Md., 


(I 


March 5, 1861. 


William Dennison, 


Ohio, 


«< 


Sept. 24, 1864. 


Alexander W. Randall, 


Wis., 


<( 


July 25, 1866. 


John A. J. Creswell, 


Md., 


tt 


March 5, 1869. 


James W. Marshall, 


N. J., 


tt 


July 3, 1874. 


Marshall Jewell, 


Conn., 


<« 


Aug. 24, 1874. 


James M. Tyner, 


Ind., 


tt 


July 12, 1876. 


David M. Key, 


Tenn., 


tt 


March 12, 1877. 


Horace Maynard, 


Tenn., 


tt 


June 2, 1880. 


Thomas L. James, 


N. Y., 


tt 


March 5, 1881. 


Timothy 0. Howe, 


Wis., 


tt 


Dec. 20, 1 88 1. 


Walter Q. Gresham, 


Ind., 


t( 


April 4, 1883. 


Frank Hatton, 


Iowa, 


tt 


Oct. 14, 1884. 


William F. Vilas, 


Wis., 


<< 


March 6, 1885. 



IX 



Attorneys-General. 



Edmund Randolph, 


Va., 


appointed 


Sept. 26, 1789. 


William Bradford, 


Penn., 


«< 


Jan. 28, 1794. 


Charles Lee, 


Va., 


(« 


Dec. 10, 1795. 


Theophilus Parsons, 


Mass., 


<« 


Feb. 20, 1801. 


Levi Lincoln, 


Mass., 


tt 


March 5, 1801. 


Robert Smith, 


Md., 


tt 


March 2, 1805. 



': "rr I :;:"•:■:-:■. ire. 


Ky-, 


; . ■ . - ■ \zz] 


DeL, 


V.'ilLin 7:-;y.-ev. 


lid., 


Richard Rush, 


7 err.. 


v. - .::-- V."Lr:. 




; :-::7"-tr=-:z I-:.:: 


Z-^.. 


J. : ~e: Z T^rty. 


Md., 


I:: :r ..- 7 I_7er. 


V.. 


::'.:i J-ru-iy. 


. ::.:. . 


He:.ry I Zr/.rir. 


:::: . 


John J. Crittenden, 




Hngh & Legare, 


S CL, 




Md., 


"-" : - : 




2 » i : r. i r. ...~;:i. 


:■:-..- z. 


I-ii: 7: _:ey. 


z-- . 


_.e~ e: :y _ :::>::. 


Mi, 


John J. Crittenden, 




7:Ze: r_-r. .r; 


Mass . 


'trtzzzz 5- Il2:k. 


?£--.. 


r. :." ~:~ .'- M^z: : ~. 


7 err . 


Ei~i_-i 3- r? 


Mo., 


7:.^Z 7 7: rev. ;;' :.-;:.. 




: .~- '-/"':■ 


Z7 


n r z ry ;■ : i r :-e rv 


Or.::. 


TnffiinM. Evaits, 


Y-, 


r. . . n : ir . 


77r~ . 


A-- 7. A,:rr~-. 




Geonge EL Wiffiaons, 


: e z : : 


i:"iri= :.::::7':::. 


IV. 


A'::::-: 7:7:. 


Z r . : . 


IzZZ'.t' Z r t"f. 


Mr-.? . 


*.Viyr.e M :"■"-.:":. 


7 err . 


I-e:._ — ..: H Ire— j:tr. 


2 iZ-Z . 


Azru:-: ZZ I-rli::, 





:r:r:e: A:- - : 

s« _ - _ - - - s- - 

Dec II i Si i 

1"^'- - - - , - 

X : 

■», r — - - - c -> - 

"'-■-- JVM 

: • : ; 



I-:: :- : ; _-. 
;.- t :: ::_: 
Mr:::. - :■-- 

.*--?■ -- \ : - 
March 7. 

] ' 1 " ~ . " ; : " 



J: 7 ; ; : : - : 






_ r 






APPENDIX. 



XI 



Associate Justices of the Supreme Court. 



John Rutledge, 
William Cushing, 
James Wilson, 
John Blair, 
Robert H. Harrison, 
James Iredell, 
Thomas Johnson, 
William Patterson, 
Samuel Chase, 
Bushrod Washington, 
Alfred Moore, 
William Johnson, 
Brockholst Livingston, 
Thomas Todd, 
Levi Lincoln, 
John Quincy Adams, 
Gabriel Duval, 
Joseph Story, 
Smith Thompson, 
Robert Trimble, 
John McLean, 
Henry Baldwin, 
James M. Wayne, 
Philip P. Barbour, 
John Catron, 
William Smith, 
John McKinley, 
Peter V. Daniel, 
Samuel Nelson, 
Levi Woodbury, 
Robert C. Grier, 
Benjamin R. Curtis, 
John A. Campbell, 
Nathan Clifford, 





Term of Service. 


s. c, 


1789 to 1791. 1 


Mass., 


1789 to 1810. 2 


Penn., 


1789 to 1 798.2 


Va., 


1789 to 1796. x 


Md., 


1789 to 1790. 1 


N. C, 


1790 to I799. 2 


Md., 


1791 to 1793. 1 


N.J., 


1793 tO l8o6. 2 


Md., 


1796 to 1811.2 


Va., 


1798 tO 1829. 2 


N. C, 


1799 to 1804. 1 


s. C, 


1804 to 1834.2 


N. Y., 


1806 to 1823.2 


Ky., 


1807 to 1826.2 


Mass., 


Declined. 


Mass., 


Declined. 


Md., 


1811 to 1835. 1 


Mass., 


. 181 1 to 1845. 2 


N. Y., 


1823 to 1843.2 


Ky., 


1826 to 1828. 2 


Ohio, 


1829 to 1861.2 


Penn., 


1830 to 1844.2 


Ga., 


1835 to 1867.2 


Va., 


1836 to 1841.2 


Tenn., 


1837 to 1865.2 


Ala., 


Declined. 


Ala., 


1837 to 1852.2 


Va., 


1841 to i860. 2 


N. Y., 


1845 to 1872. 3 


N. H., 


1845 t0 1851.* 


Penn., 


1846 to 1870. 3 


Mass., 


1851 to 1857. J 


Ala., 


1853 to 1861. 1 


Maine, 


1858 to 1881. 2 



1 Resigned. 
A. C. 



2 Died. 



-31. 



3 Resigned, with salary continued. 



:lz. a..- --ZJ" _::•:. 



: -:i.'- :-: --: iS6itoiSSi.* 

-i-it 7 Mile.-. I:-i. :::::: 



vt::t: ~ J.tiL 111 . ::•:': :: 

"iiiirr: ;::::: rt".. [5": :: :;.;.: : 

':*=:-'- '- Er-i.il sj J-, ::": :: 

""i_-i H: V ::-;:: :i- * 

;:i- 1: Hirlin. Kj., 1 5" :: 

""...:" : "r-_.-_.iz. Ah f :ii: :: 

-.i-lt- Mi-.iit -.=. I-;:. :E.i: -.: 

H : :_:t iri~. ? li.:._-. . :ii: :: 

iirn— 1 Zli.:i;:ri X. V :ii: :: 



•- 






THE DECLARATION OF INDEPENDENCE. 



IN CONGRESS, JULY 4, 1776. 

THE UNANIMOUS DECLARATION OF THE THIRTEEN 
UNITED STATES OF AMERICA. 



When, in the course of human events, it becomes necessary for one 
people to dissolve the political bands which have connected them with 
another, and to assume, among the powers of the earth, the separate and 
equal station to which the laws of nature and of nature's God entitle 
them, a decent respect to the opinions of mankind requires that they 
should declare the causes which impel them to the separation. 

We hold these truths to be self-evident : that all men are created equal; 
that they are endowed by their Creator with certain unalienable rights ; 
that among these are life, liberty, and the pursuit of happiness ; that, to 
secure these rights, governments are instituted among men, deriving their 
just powers from the consent of the governed; that, whenever any form 
of government becomes destructive of these ends, it is the right of the 
people to alter or to abolish it, and to institute a new government, laying 
its foundation on such principles, and organizing its powers in such form, 
as to them shall seem most likely to effect their safety and happiness. 
Prudence, indeed, will dictate, that governments long established, should 
not be changed for light and transient causes ; and, accordingly, all expe- 
rience hath shown that mankind are more disposed to suffer, while evils 
are sufferable, than to right themselves by abolishing the forms to which 
they are accustomed. But when a long train of abuses and usurpations, 
pursuing invariably the same object, evinces a design to reduce them 
under absolute despotism, it is their right, it is their duty, to throw off 
such a government, and to provide new guards for their future security. 
Such has been the patient sufferance of these colonies, and such is now 

( xiii ) 



XIV APPENDIX. 

the necessity which constrains them to alter their former systems of gov- 
ernment. The history of the present King of Great Britain is a history 
of repeated injuries and usurpations, all having in direct object the estab- 
lishment of an absolute tyranny over these States. To prove this, let 
facts be submitted to a candid world. 

He has refused his assent to laws the most wholesome and necessary for 
the public good. 

He has forbidden his governors to pass laws of immediate and pressing 
importance, unless suspended in their operations till his assent should be ob- 
tained ; and when so suspended, he has utterly neglected to attend to them. 

He has refused to pass other laws for the accommodation of large dis- 
tricts of people, unless those people would relinquish the right of repre- 
sentation in the legislature — a right inestimable to them, and formidable 
to tyrants only. 

He has called together legislative bodies at places unusual, uncomforta- 
ble, and distant from the depository of their public records, for the sole 
purpose of fatiguing them into compliance with his measures. 

He has dissolved representative houses repeatedly for opposing, with 
manly firmness, his invasions on the rights of the people. 

He has refused, for a long time after such dissolutions, to cause others 
to be elected, whereby the legislative powers, incapable of annihilation, 
have returned to the people at large for their exercise ; the state remain- 
ing, in the meantime, exposed to all the dangers of invasions from without 
and convulsions within. 

He has endeavored to prevent the population of these States; for that 
purpose obstructing the laws for the naturalization of foreigners ; refusing 
to pass others to encourage their migrations hither, and raising the condi- 
tions of new appropriations of lands. 

He has obstructed the administration of justice by refusing his assent 
to laws for establishing judiciary powers. 

He has made judges dependent on his will alone for the tenure of their 
offices and the amount and payment of their salaries. 

He has erected a multitude of new offices, and sent hither swarms of 
officers to harass our people and eat out their substance. 

He has kept among us, in times of peace, standing armies, without the 
consent of our legislatures. 

He has affected to render the military independent of, and superior to, 
the civil power. 

He has combined with others to subject us to a jurisdiction foreign to 
our constitution, and unacknowledged by our laws ; giving his assent to 
their acts of pretended legislation : 



APPENDIX. XV 

For quartering large bodies of armed troops among us; 

For protecting them, by a mock trial, from punishment for any murders 
which they should commit on the inhabitants of these States ; 

For cutting off our trade with all parts of the world ; 

For imposing taxes on us without our consent ; 

For depriving us, in many cases, of the benefits of trial by jury; 

For transporting us beyond seas to be tried for pretended offenses ; 

For abolishing the free system of English laws in a neighboring prov- 
ince, establishing therein an arbitrai-y government, and enlarging its 
boundaries, so as to render it at once an example and fit instrument for 
introducing the same absolute rule into these colonies ; 

For taking away our charters, abolishing our most valuable laws, and 
altering fundamentally the forms of our governments ; 

For suspending our own legislatures, and declaring themselves invested 
with power to legislate for us in all cases whatsoever. 

He has abdicated government here by declaring us out of his protec- 
tion, and waging war against us. 

He has plundered our seas, ravaged our coasts, burned our towns, and 
destroyed the lives of our people. 

He is at this time transporting large armies of foreign mercenaries to 
complete the works of death, desolation, and tyranny, already begun with 
circumstances of cruelty and perfidy, scarcely paralleled in the most bar- 
barous ages, and totally unworthy the head of a civilized nation. 

He has constrained our fellow-citizens, taken captive on the high seas, 
to bear arms against their country, to become the executioners of their 
friends and brethren, or to fall themselves by their hands. 

He has excited domestic insurrection among us, and has endeavored to 
bring on the inhabitants of our frontiers the merciless Indian savages, 
whose known rule of warfare is an undistinguished destruction of all 
ages, sexes, and conditions. 

In every stage of these oppressions we have petitioned for redress in the 
most humble terms ; our repeated petitions have been answered only by 
repeated injury. A prince whose character is thus marked by every act 
which may define a tyrant, is unfit to be the ruler of a free people. 

Nor have we been wanting in attentions to our British brethren. We 
have warned them, from time to time, of attempts by their legislature to 
extend an unwarrantable jurisdiction over us. We have reminded them 
of the circumstances of our emigration and settlement here. We have 
appealed to their native justice and magnanimity, and we have conjured 
them, by the ties of our common kindred, to disavow these usurpations, 
which would inevitably interrupt our connections and correspondence. 



XVI APPENDIX. 

They, too, have been deaf to the voice of justice and of consanguinity. 
We must, therefore, acquiesce in the necessity which denounces our sepa- 
ration, and hold them as we hold the rest of mankind — enemies in war ; 
in peace, friends. 

We, therefore, the representatives of the United States of America, in 
General Congress assembled, appealing to the Supreme Judge of the world 
for the rectitude of our intentions, do, in the name and by the authority of 
the good people of these colonies, solemnly publish and declare, That 
these United Colonies are, and of right ought to be, Free and Independ- 
ent Slates; that they are absolved from all allegiance to the British 
crown, and that all political connection between them and the state of 
Great Britain is, and ought to be, totally dissolved ; and that, as Free 
and Independent States, they have full power to levy war, conclude peace, 
contract alliances, establish commerce, and to do all other acts and things 
which Independent States may of right do. And for the support of this 
Declaration, with a firm reliance on the protection of Divine Provi- 
dence, we mutually pledge to each other our lives, our fortunes, and our 
sacred honor. 

JOHN HANCOCK. 

New Hampshire. — Josiah Bartlett, William Whipple, Matthew Thornton. 

Massachusetts Bay. — Samuel Adams, John Adams, Robert Treat 
Paine, Elbridge Gerry. 

Rhode Island, Etc. — Stephen Hopkins, William Ellery. 

Connecticut. — Roger Sherman, Samuel Huntington, William Williams, 
Oliver Wolcott. 

New York. — William Floyd, Philip Livingston, Francis Lewis, Lewis 
Morris. 

New Jersey. — Richard Stockton, John Witherspoon, Francis Hopkin- 
son, John Hart, Abraham Clark. 

Pennsylvania. — Robert Morris, Benjamin Rush, Benjamin Franklin, 
John Morton, George Clymer, James Smith, George Taylor, James Wilson, 
George Ross. 

Delaware. — Caesar Rodney, George Read, Thomas M'Kean. 

Maryland. — Samuel Chase, William Paca, Thomas Stone, Charles 
Carroll, of Carrollton. 

Virginia. — George Wythe, Richard Henry Lee, Thomas Jefferson, 
Benjamin Harrison, Thomas Nelson, Jr., Francis Lightfoot Lee, Carter 
Braxton. 

North Carolina. — William Hooper, Joseph Hewes, John Penn. 

South Carolina. — Edward Rutledge, Thomas Hey ward, Jr., Thomas 
Lynch, Jr., Arthur Middleton. 

Georgia. — Button Gwinnett, Lyman Hall, George Walton. 



ARTICLES OF CONFEDERATION. 



Articles of Confederation and Perpetual Union between the States 
of New Hampshire, Massachusetts Bay, Rhode Island and 
Providence Plantations, Connecticut, New York, New Jersey, 
Pennsylvania, Delaware, Maryland, Virginia, North Caro- 
lina, South Carolina, and Georgia. 



Article I. — The style of this confederacy shall be, "The United 
States of America." 

Art. II. — Each State retains its sovereignty, freedom, and independ- 
ence, and every power, jurisdiction, and right, which is not by this con- 
federation expressly delegated to the United States in Congress assembled. 

Art. III. — The said States hereby severally enter into a firm league of 
friendship with each other, for their common defense, the security of their 
liberties, and their mutual and general welfare, binding themselves to 
assist each other against all force offered to, or attacks made upon them, 
or any of them, on account of religion, sovereignty, trade, or any other 
pretense whatever. 

Art. IV. — The better to secure and perpetuate mutual friendship and 
intercourse among the people of the different States in this Union, the 
free inhabitants of each of these States, paupers, vagabonds, and fugitives 
from justice excepted, shall be entitled to all privileges and immunities of 
free citizens in the several States ; and the people of each State shall have 
free ingress and regress to and from any other State, and shall enjoy 
therein all the privileges of trade and commerce, subject to the same 
duties, impositions, and restrictions, as the inhabitants thereof respect- 
ively ; provided that such restrictions shall not extend so far as to prevent 
the removal of property imported into any State, to any other State of 
which the owner is an inhabitant; provided, also, that no imposition, 

( xvii ) 



XV111 APPENDIX. 

duties, or restriction, shall be laid by any State on tbe property of tbe 
United States or either of them. 

If any person guilty of, or charged with, treason, felony, or other high 
misdemeanor in any State, shall flee from justice, and be found in any of 
the United States, he shall, upon demand of the governor or executive 
power of the State from which he fled, be delivered up, and removed to 
the State having jurisdiction of his offense. 

Full faith and credit shall be given, in each of these States, to the 
records, acts, and judicial proceedings of the courts and magistrates of 
every other State. 

Art. V. — For the more convenient management of the general interests 
of the United States, delegates shall be annually appointed in such man- 
ner as the legislature of each State shall direct, to meet in Congress on 
the first Monday in November, in every year, with a power reserved to 
each State to recall its delegates, or any of them, at any time within the 
year, and to send others in their stead for the remainder of the year. 

No State shall be represented in Congress by less than two, nor by more 
than seven members ; and no person shall be capable of being a delegate 
for more than three years, in any term of six years; nor shall any person, 
being a delegate, be capable of holding any office under the United 
States, for which he, or another for his benefit, receives any salary, fees, 
or emolument of any kind. 

Each State shall maintain its own delegates in any meeting of the 
States and while they act as members of the committee of the States. 

In determining questions in the United States in Congress assembled, 
each State shall have one vote. 

Freedom of speech and debate in Congress shall not be impeached or 
questioned in any court or place out of Congress ; and the members of 
Congress shall be protected in their persons from arrests and imprison- 
ments during the time of their going to and from, and attendance on 
Congress, except for treason, felony, or breach of the peace. 

Art. VI. — No State, without the consent of the United States, in 
Congress assembled, shall send any embassy to, or receive any embassy 
from, or enter into any conference, agreement, alliance, or treaty, with any 
king, prince, or state ; nor shall any person holding any office of profit 
or trust under the United States, or any of them, accept of any present, 
emolument, office, or title of any kind whatever, from any king, prince, 
or foreign state ; nor shall the United States, in Congress assembled, or 
any of them, grant any title of nobility. 

No two or more States shall enter into any treaty, confederation, or 
alliance whatever between them, without the consent of the United 



APPENDIX. XIX 

States, in Congress assembled, specifying accurately the purposes for 
which the same is to be entered into, and how long it shall continue. 

No States shall lay any imposts or duties which may interfere with any 
stipulations in treaties entered into by the United States, in Congress 
assembled, with any king, prince, or state, in pursuance of any treaties 
already proposed by Congress to the courts of France and Spain. 

No vessels of war shall be kept up in time of peace, by any State, 
except such number only as shall be deemed necessary, by the United 
States in Congress assembled, for the defense of such State or its trade ; 
nor shall any body of forces be kept up, by any State, in time of peace, 
except such number only as, in the judgment of the United States, in 
Congress assembled, shall be deemed requisite to garrison the forts neces- 
sary for the defense of such State ; but every State shall always keep up a 
well regulated and disciplined militia, sufficiently armed and accoutered, 
and shall provide and constantly have ready for use, in public stores, a 
due number of field-pieces and tents, and a proper quantity of arms, 
ammunition, and camp equipage. 

No State shall engage in any war without the consent of the United States, 
in Congress assembled, unless such State be actually invaded by enemies, 
or shall have received certain advice of a resolution being formed by some 
nation of Indians to invade such State, and the danger is so imminent as 
not to admit of a delay till the United States, in Congress assembled, can 
be consulted ; nor shall any State grant commissions to any ships or ves- 
sels of war, nor letters of marque or reprisal, except it be after a declara- 
tion of war by the United States, in Congress assembled, and then only 
against the kingdom or state, and the subjects thereof against which war 
has been so declared, and under such regulations as shall be established 
by the United States, in Congress assembled, unless such State be infested 
by pirates, in which case vessels of war may be fitted out for that occa- 
sion, and kept so long as the danger shall continue, or until the United 
States, in Congress assembled, shall determine otherwise. 

Art. VII. — When land forces are raised by any State for the common 
defense, all officers of or under the rank of colonel, shall be appointed 
by the legislature of each State respectively by whom such forces shall be 
raised, or in such manner as such State shall direct, and all vacancies 
shall be filled up by the State which first made the appointment. 

Art. VIII. — All charges of war, and all other expenses that shall be 
incurred for the common defense or general welfare, and allowed by the 
United States in Congress assembled, shall be defrayed out of a common 
treasury, which shall be supplied by the several States, in proportion to 
the value of all land within each State, granted to, cr surveyed for, any 



XX APPENDIX. 

person, as such land and the buildings and improvements thereon shall be 
estimated according to such mode as the United States, in Congress assem- 
bled, shall, from time to time, direct and appoint. The taxes for paying 
that proportion shall be laid and levied by the authority and direction of 
the legislatures of the several States, within the time agreed upon by the 
United States, in Congress assembled. 

Art. IX. — The United States, in Congress assembled, shall have the 
sole and exclusive right and power of determining on peace and war, ex- 
cept in the cases mentioned in the sixth Article ; of sending and receiving 
ambassadors ; entering into treaties and alliances, provided that no treaty 
of commerce shall be made whereby the legislative power of the re- 
spective States shall be restrained from imposing such imposts and duties 
on foreigners, as their own people are subjected to, or from prohibiting the 
exportation or importation of any species of goods or commodities what- 
soever ; of establishing rules for deciding, in all cases, what captures on 
land or water shall be legal, and in what manner prizes taken by land or 
naval forces in the service of the United States, shall be divided or appro- 
priated ; of granting letters of marque and reprisal in times of peace ; 
appointing courts for the trial of piracies and felonies committed on the 
high seas ; and establishing courts for receiving and determining finally 
appeals in all cases of captures ; provided that no member of Congress 
shall be appointed a judge of any of the said courts. 

The United States, in Congress assembled, shall also be the last resort 
on appeal, in all disputes and differences now subsisting, or that hereafter 
may arise between two or more States concerning boundary, jurisdiction, 
or any other cause whatever ; which authority shall always be exercised 
in the manner following : Whenever the legislative or executive authority, 
or lawful agent of any State in controversy with another, shall present a 
petition to Congress, stating the matter in question, and praying for a 
hearing, notice thereof shall be given by order of Congress, to the legisla- 
tive or executive authority of the other State in controversy, and a day 
assigned for the appearance of the parties by their lawful agents, who 
shall then be directed to appoint, by joint consent, commissioners or 
judges to constitute a court for hearing and determining the matter in 
question ; but if they can not agree, Congress shall name three persons 
out of each of the United States, and from the list of such persons each 
party shall alternately strike out one, the petitioners beginning, until 
the number shall be reduced to thirteen ; and from that number not less 
than seven nor more than nine names, as Congress shall direct, shall, in 
the presence of Congress, be drawn out by lot ; and the persons whose 
names shall be so drawn, or any five of them, shall be commissioners or 



APPENDIX. XXI 

judges, to hear and finally determine the controversy, so always as a major 
part of the judges, who shall hear the cause, shall agree in the determina- 
tion ; and if either party shall neglect to attend at the day appointed, 
without showing reasons which Congress shall judge sufficient, or being 
present, shall refuse to strike, the Congress shall proceed to nominate 
three persons out of each State, and the secretary of Congress shall strike 
in behalf of such party absent or refusing; and the judgment and sen- 
tence of the court, to be appointed in the manner before prescribed, shall 
be final and conclusive ; and if any of the parties shall refuse to submit 
to the authority of such court, or to appear or defend their claim or 
cause, the court shall nevertheless proceed to pronounce sentence or judg- 
ment, which shall in like manner be final and decisive ; 'the judgment or 
sentence and other proceedings being in either case transmitted to Con- 
gress, and lodged among the acts of Congress for the security of the 
parties concerned ; provided, that every commissioner, before he sits in 
judgment, shall take an oath, to be administered by one of the judges of 
the supreme or superior court of the State where the cause shall be tried, 
" well and truly to hear and determine the matter in question, according 
to the best of his judgment, without favor, affection, or hope of reward." 
Provided, also, that no State shall be deprived of territory for the benefit 
of the United States. 

All controversies concerning the private right of soil claimed under 
different grants of two or more States, whose jurisdictions, as they may 
respect such lands, and the States which passed such grants are adjusted, 
the said grants or either of them being at the same claimed to have origi- 
nated antecedent to such settlement of jurisdiction, shall, on the petition 
of either party to the Congress of the United States, be finally deter- 
mined, as near as may be, in the same manner as is before prescribed for 
deciding disputes respecting territorial jurisdiction between different 
States. 

The United States, in Congress assembled, shall also have the sole and 
exclusive right and power of regulating the alloy and value of coin struck 
by their own authority, or by that of the respective States ; fixing the 
standard of weights and measures throughout the United States ; regulat- 
ing the trade and managing all affairs with the Indians not members of 
any of the States ; provided that the legislative right of any State, 
within its own limits, be not infringed or violated ; establishing and regu- 
lating post-offices from one State to another throughout all the United 
States, and exacting such postage on the papers passing through the same, 
as may be requisite to defray the expenses of the said office ; appointing 
all officers of the land forces in the service of the United States, except- 



XX11 APPENDIX. 

ing regimental officers ; appointing all the officers of the naval forces, and 
commissioning all officers whatever in the service of the United States ; 
making rules for the government and regulation of the said land and 
naval forces, and directing their operations. 

The United States, in Congress assembled, shall have authority to ap- 
point a committee, to sit in the recess of Congress, to be denominated 
"A Committee of the States," and to consist of one delegate from each 
State ; and to appoint such other committees and civil officers as may be 
necessary for managing the general affairs of the United States under 
their direction ; to appoint one of their number to preside, provided that 
no person be allowed to serve in the office of president more than one 
year in any term of three years ; to ascertain the necessary sums of money 
to be raised for the service of the United States, and to appropriate and 
apply the same for defraying the public expenses ; to borrow money or 
emit bills on the credit of the United States, transmitting every half year 
to the respective States an account of the sums of money so borrowed or 
emitted ; to build and equip a navy ; to agree upon the number of land 
forces, and to make requisitions from each State for its quota, in propor- 
tion to the number of white inhabitants in such State, which requisition 
shall be binding ; and thereupon the Legislature of each State shall ap- 
point the regimental officers, raise the men, and clothe, arm, and equip 
them in a soldier-like manner at the expense of the United States ; and 
the officers and men so clothed, armed, and equipped shall march to the 
place appointed, and within the time agreed on by the United States, in 
Congress assembled ; but if the United States, in Congress assembled, 
shall, on consideration of circumstances, judge proper that any State 
should not raise men, or should raise a smaller number than its quota, and 
that any other State should raise a greater number of men than the quota 
thereof, such extra number shall be raised, officered, clothed, armed, and 
equipped in the same manner as the quota of such State, unless the Leg- 
islature of such State shall judge that such extra number can not be 
safely spared out of the same, in which case they shall raise, officer, 
clothe, arm, and equip as many of such extra number as they judge can 
be safely spared, and the officers and men so clothed, armed, and equipped 
shall march to the place appointed, and within the time agreed on by the 
United States, in Congress assembled. 

The United States, in Congress assembled, shall never engage in a war, 
nor grant letters of marque and reprisal in time of peace, nor enter into 
any treaties or alliances, nor coin money, nor regulate the value thereof, 
nor ascertain the sums and expenses necessary for the defense and welfare 
of the United States, or any of them, nor emit bills, nor borrow money 



APPENDIX. XX111 

on the credit of the United States, nor appropriate money, nor agree upon 
the number of vessels of war to be built or purchased, or the number of 
land or sea forces to be raised, nor appoint a commander-in-chief of the 
army or navy, unless nine States assent to the same, nor shall a question 
on any other point, except for adjourning from day to day, be determined, 
unless by the votes of a majority of the United States, in Congress assem- 
bled. 

The Congress of the United States shall have power to adjourn to any 
time within the year, and to any place within tne United States, so that 
no period of adjournment be for a longer duration than the space of six 
months, and shall publish the journal of their proceedings monthly, 
except such parts thereof relating to treaties, alliances, or military opera- 
tions as in their judgment require secrecy ; and the yeas and nays of the 
delegates of each State, on any question, shall be entered on the journal, 
when it is desired by any delegate ; and the delegates of a State, or any 
of them, at his or their request, shall be furnished with a transcript of the 
said journal, except such parts as are above excepted, to lay before the 
legislatures of the several States. 

Art. X. — The committee of the States, or any nine of them, shall be 
authorized to execute, in the recess of Congress, such of the powers of 
Congress as the United States, in Congress assembled, by the consent of 
nine States, shall, from time to time, think expedient to vest them with ; 
provided that no power be delegated to the said committee, for the exer- 
cise of which, by the articles of confederation, the voice of nine States, 
in the Congress of the United States assembled is requisite. 

Art. XI. — Canada acceding to this confederation, and joining in the 
measures of the United States, shall be admitted into, and entitled to all 
the advantages of this Union ; but no other colony shall be admitted into 
the same unless such admission be agreed to by nine States. 

Art. XII. — All bills of credit emitted, moneys borrowed, and debts 
contracted by or under the authority of Congress, before the assembling 
of the United States, in pursuance of the present confederation, shall be 
deemed and considered as a charge against the United States, for payment 
and satisfaction whereof the said United States and the public faith are 
hereby solemnly pledged. 

Art. XIII. — Every State shall abide by the determinations of the 
United States, in Congress assembled, on all questions which by this Con- 
federation are submitted to them. And the Articles of this Confederation 
shall be inviolably observed by every State, and the Union shall be per- 
petual ; nor shall any alteration at any time hereafter be made in any of 
them, unless such alteration be agreed to in a Congress of the United 



XXIV APPENDIX. 

States, and be afterwards confirmed by the legislatures of every 
State. 

And whereas it hath pleased the great Governor of the world to incline 
the hearts of the legislatures we respectively represent in Congress, to 
approve of, and to authorize us to ratify the said Articles of Confedera- 
tion and perpetual Union, Know ye, that we, the undersigned delegates, 
by virtue of the power and authority to us given for that purpose, do, by 
these presents, in the name and in behalf of our respective constituents, 
fully and entirely ratify and confirm each and every of the said Articles 
of Confederation and perpetual Union, and all and singular the matters 
and things therein contained. And we do further solemnly plight and 
engage the faith of our respective constituents, that they shall abide by 
the determinations of the United States, in Congress assembled, on all 
questions which by the said Confederation are submitted to them ; and 
that the Articles thereof shall be inviolably observed by the States we re- 
spectively represent, aud that the Union shall be perpetual. In witness 
whereof, we have hereunto set our hands in Congress. Done at Phila- 
delphia, in the State of Pennsylvania, the ninth day of July, in the year 
of our Lord 1778, and in the third year of the Independence of America. 



ORDINANGE OF Ull 

July 13, 1787. 



An Ordinance for the Government of the Territory of the 
United States, North-west of the River Ohio. 



Be it ordained, by the United States, in Congress assembled, that the 
said Territory, for the purposes of temporary government, be one district ; 
subject, however, to be divided into two districts, as future circumstances 
may, in the opinion of Congress, make it expedient. 

Be it ordained, by the authority aforesaid, that the estates, both of resi- 
dent and non-resident proprietors in the said Territory, dying intestate, 
shall descend to, and be distributed among, their children, and the de- 
scendants of a deceased child, in equal parts; the descendants of a de- 
ceased child or grandchild, to take the share of their deceased parent, in 
equal parts, among them ; and where there shall be no children or de- 
scendants, then in equal parts to the next of kin, in equal degree ; and 
among collaterals, the children of a deceased brother or sister of the 
intestate, shall have, in equal parts, among them, their deceased parent's 
share ; and there shall in no case be a distinction between kindred of the 
whole and half blood ; saving in all cases to the widow of the intestate, 
her third part of the real estate for life, and one-third part of the personal 
estate ; and this law relative to descents and dower, shall remain in full 
force until altered by the legislature of the district. And until the gov- 
ernor and judges shall adopt laws as hereinafter mentioned, estates in the 
said Territory may be devised or bequeathed by wills in writing, signed 
and sealed by him or her, in whom the estate may be (being of full age), 
and attested by three witnesses, and real estates may be conveyed by 

(xxv) 



XXVI APPENDIX. 

lease and release, or bargain and sale, signed, sealed, and delivered by 
the person, being of full age, in whom the estate may be, and attested by 
two witnesses, provided such wills be duly proved, and such conveyances 
be acknowledged, or the execution thereof duly proved, and be recorded 
within one year after proper magistrates, courts, and registers shall be ap- 
pointed for that purpose ; and personal property may be transferred by 
delivery, saving, however, to the French and Canadian inhabitants, and 
other settlers of the Kaskaskias, Saint Vincents, and the neighboring 
villages, who have heretofore professed themselves citizens of Virginia, 
their laws and customs now in force among them, relative to descent and 
conveyance of property. 

Be it ordained, by the authority aforesaid, that there shall be appointed 
from time to time, by Congress, a governor, whose commission shall con- 
tinue in force for the term of three years, unless sooner revoked by Con- 
gress; he shall reside in the district, and have a freehold estate therein, 
in one thousand acres of land, while in the exercise of his office. There 
shall be appointed from time to time, by Congress, a secretary, whose 
commission shall continue in force for four years, unless sooner revoked ; 
he shall reside in the district, and have a freehold estate therein, in five 
hundred acres of land, while in the exercise of his office ; it shall be his 
duty to keep and preserve the acts and laws passed by the legislature, and 
the public records of the district, and the proceedings of the governor in 
his executive department ; and transmit authentic copies of such acts and 
proceedings, every six months, to the secretary of Congress. There shall 
also be appointed a court, to consist of three judges, any two of whom to 
form a court, who shall have a common law jurisdiction, and reside in the 
district, and have each therein a freehold estate, in five hundred acres of 
land, while in the exercise of their offices ; and their commissions shall 
continue in force during good behavior. 

The governor and judges, or a majority of them, shall adopt and pub- 
lish in the district, such laws of the original States, criminal and civil, 
as may be necessary, and best suited to the circumstances of the district, 
and report them to Congress, from time to time, which laws shall be in 
force in the district until the organization of the general assembly therein, 
unless disapproved of by Congress ; but afterwards, the legislature shall 
have authority to alter them as they shall think fit. 

The governor for the time being, shall be commander-in-chief of the 
militia, appoint and .commission all officers in the same, below the rank 
of general officers. All general officers shall be appointed and commis- 
sioned by Congress. 

Previous to the organization of the general assembly, the governor 



APPENDIX. XXV11 

shall appoint such magistrates and other civil officers, in each county or 
township, as he shall find necessary for the preservation of the peace and 
good order in the same. After the general assembly shall be organized, 
the powers and duties of magistrates and other civil officers shall be regu- 
lated and defined by the said assembly ; but all magistrates and other 
civil officers, not herein otherwise directed, shall, during the continuance 
of this temporary government, be appointed by the governor. 

For the prevention of crimes and injuries, the laws to be adopted or 
made, shall have force in all parts of the district, and for the execution 
of process, criminal and civil, the governor shall make proper divisions 
thereof; and he shall proceed from time to time, as circumstances may 
require, to lay out the parts of the district in which the Indian titles shall 
have been extinguished, into counties and townships, subject, however, to 
such alterations as may thereafter be made by the legislature. 

So soon as there shall be five thousand free male inhabitants, of full 
age, in the district, upon giving proof thereof to the governor, they shall 
receive authority, with time and place, to elect representatives from their 
counties or townships, to represent them in the general assembly ; provided, 
that for every five hundred free male inhabitants there shall be one repre- 
sentative, and so on progressively with the number of free male inhabit- 
ants, shall the right of representation increase, until the number of 
representatives, shall amount to twenty-five, after which the number and 
proportion of representatives shall be regulated by the legislature ; pro- 
vided, that no person be eligible or qualified to act as a representative, 
unless he shall have been a citizen of one of the United States three 
years, and be a resident in the district, or unless he shall have resided 
in the district three years, and in either case shall likewise hold in his 
own right, in fee simple, two hundred acres of land within the same ; 
provided, also, that a freehold in fifty acres of land in the district, hav- 
ing been a citizen of one of the States, and being resident in the district, 
or the like freehold and two years residence in the district, shall be neces- 
sary to qualify a man as an elector of a representative. 

The representatives thus elected, shall serve for the term of two years, 
and in case of the death of a representative, or removal from office, the 
governor shall issue a writ to the county or township for which he was a 
member, to elect another in his stead, to serve for the residue of the 
term. 

The general assembly, or legislature, shall consist of the governor, 

legislative council, and a house of representatives. The legislative 

council shall consist of five members, to continue in office for five years, 

unless sooner removed by Congress, any three of whom to be a quorum, 
A. C— 32. 



:■■: : . ill APPENDIX. 

and the members of the council, shall be nominated and appointed in the 
following manner ; to-wit, as soon as representatives shall be elected, the 
governor shall appoint a time and place for them to meet together, and 
when met, they shall nominate ten persons, residents in the district, and 
each possessed of a freehold in five hundred acres of land, and return 
their names to Congress ; five of whom Congress shall appoint and com- 
mission to serve as aforesaid ; and whenever a vacancy shall happen in 
the council, by death or removal from office, the house of representatives 
shall nominate two persons, qualified as aforesaid, for each vacancy, and 
return their names to Congress, one of whom Congress shall appoint and 
commission for the residue of the term ; and every five years, four 
months at least before the expiration of the time of service of the mem- 
bers of council, the said house shall nominate ten persons, qualified as 
aforesaid, and return their names to Congress, five of whom Congress 
shall appoint and commission to serve as members of the council five 
years, unless sooner removed. 

And the governor, legislative council, and house of representatives, 
shall have authority to make laws in all cases for the good government of 
the district, not repugnant to the principles and articles in this ordinance 
established and declared. And all bills having passed by a majority in 
the house, and by a majority in the council, shall be referred to the 
governor for his assent ; but no bill or legislative act whatever shall be of 
any force without his assent. The governor shall have power to convene, 
prorogue, and dissolve the general assembly, when in his opinion it shall 
be expedient. 

The governor, judges, legislative council, secretary, and such other 
officers as Congress shall appoint in the district, shall take an oath or 
affirmation of fidelity, and of office — the governor before the president of 
Congress, and all other officers before the governor. As soon as a legis- 
lature shall be formed in the district, the council and house, assembled in 
one room, shall have authority, by joint ballot to elect a delegate to Con- 
gress, who shall have a seat in Congress, with a right of debating, but 
not of voting, during this temporary government. 

And for extending the fundamental principles of civil and religious 
liberty, which form the basis whereon these republics, their laws and con- 
stitutions, are erected ; to fix and establish those principles as the basis of 
all laws, constitutions, and governments, which forever hereafter shall be 
formed in the said Territory; to provide also for the establishment of 
States, and permanent government therein, and for their admission to a 
share in the federal councils on an equal footing with the original States, 
at as early periods as may be consistent with the general interest. 



APPENDIX. XXIX 

// is hereby ordained and declared, by the authority aforesaid, that the 
following articles shall be considered as articles of compact between the 
original States and the people and States in the said Territory, and for- 
ever remain unalterable, unless by common consent, to-wit : 

Art. I. — No person demeaning himself in a peaceable and orderly 
manner, shall ever be molested on account of his mode of worship or re- 
ligious sentiments in the said Territory. 

Art. II. — The inhabitants of the said Territory shall always be entitled 
to the benefit of the writ of habeas corpus, and of trial by jury; of a pro- 
portionate representation of the people in the legislature, and of judicial 
proceedings according to the course of the common law. All persons 
shall be bailable unless for capital offenses, where the proof shall be evi- 
dent or the presumption great. All fines shall be moderate, and no cruel 
or unusual punishments shall be inflicted. No man shall be deprived of 
his liberty or property but by the judgment of his peers, or the law of the 
land; and should the public exigencies make it necessary for the common 
preservation to take any person's property, or to demand his particular 
services, full compensation shall be made for the same. And in the just 
preservation of rights and property, it is understood and declared, that 
no law ought ever to be made, or have force in the said Territory, that 
shall in any manner whatever interfere with, or affect private contracts or 
engagements, bona fide and without fraud previously formed. 

Art. III. — Religion, morality, and knowledge, being necessary to 
good government and the happiness of mankind, schools, and the means 
of education shall forever be encouraged. The utmost good faith shall 
always be observed towards the Indians ; their lands and property shall 
never be taken from them without their consent ; and in their property, 
rights, and liberty they shall never be invaded or disturbed, unless in just 
and lawful wars authorized by Congress ; but laws founded in justice and 
humanity, shall, from time to time, be made, for preventing wrongs being 
done to them, and for preserving peace and friendship with them. 

Art. IV. — The said Territory, and the States which may be formed 
therein, shall forever remain a part of this confederacy of the United 
States of America, subject to the Articles of Confederation, and to such 
alteration therein, as shall be constitutionally made ; and to all the acts 
and ordinances of the United States, in Congress assembled, conformable 
thereto. The inhabitants and settlers in the said Territory shall be 
subject to pay a part of the federal debts contracted or to be contracted, 
and a proportional part of the expenses of government, to be apportioned 
on them, by Congress, according to the same common rule and measure 
by which apportionments thereof shall be made on the other States ; and 



XXX APPENDIX. 

the taxes for paying their proportion, shall be laid and levied by the au- 
thority and direction of the legislatures of the district, or districts, or new 
States, as in the original States, within the time agreed upon by the 
United States, in Congress assembled. The legislatures of those districts, 
or new States, shall never interfere with the primary disposal of the sofl. 
by the United States, in Ccr g - -embled, nor with any regulations 

Congress may find necessary for securing the title in such soil to the bona 
fide purchasers. No tax shall be imposed on lands the property of the 
United States ; and in no case shall non-resident proprietors be taxed 
higher than residents. The navigable waters leading into tfc -sippi 

and St. Lawrence, and the carrying places between the same, shall be 
common highways, and forever free, as well as to the inhabitants of the 
said Territory, as to the citizens of the United States, and those of any 
other States that may be admitted into the confederacy, without any tax, 
impost, or duty therefor. 

Art. V. — There shall be formed in the said Territory not less than 
three, nor more than five and the boundaries of the States, as 

soon as Virginia shall alter her act of cession and consent to the same, 
shall become fixed and established as follows, to- wit : The western State 
in the said Territory, shall be bounded by the Mississippi, the Ohio, and 
the Wabash rivers ; a direct line drawn, from the Wabash and Post Vin- 
cents due north to the territorial hue between the United States and 
Canada, and by the said territorial line to the Lake of the Woods and 
Mississippi. The middle State shall be bounded by the said direct line, 
the Wabash from Post Vincents to the Ohio, by the Ohio, by a direct line 
drawn due north from the mouth of the Great Miami to the said terri- 
torial line, and by said territorial line. The eastern State shall be 
bounded by the last mentioned direct line, the Ohio, Pennsylvania, and 
the said territorial line : provided, however, and it is further understood 
and declared, that the boundaries of these threr hall be subject so 

far to be altered, that if Congress shall hereafter find it expedient, they 
shall have authority to form one or two States in that part of the said 
Territory which lies north of an east and west line drawn through the 
southerly bend or extreme of lake Michigan. And whenever any of the 
said States shall have sixty thousand free inhabitants therein, such S 
shall be admitted by its delegates, into the Congress of the 7 
on an equal footing with the original ~ : in all respects whatsoe 

and shall be at liberty to form a permanent constitution and State gov- 
ernment : provided, the constitution and government so to be formed 
shall be republican, and in conformity to the principles contained in 
these articles; and, so far as it can be cons:_ . :':.z rtneral interest 



APPENDIX. XXXI 

of the confederacy, such admission shall be allowed at an earlier period, 
and when there may be a less number of free inhabitants in the State 
than sixty thousand. 

Art. VI. — There shall be neither slavery nor involuntary servitude in 
the said Territory, otherwise than in the punishment of crimes whereof 
the party shall have been duly convicted : provided, always, that any 
person escaping into the same, from whom labor or service is lawfully 
claimed in any one of the original States, such fugitive may be lawfully 
reclaimed and conveyed to the person claiming his or her labor or service 
as aforesaid. 

Be U ordained, by the authority aforesaid, that the resolutions of the 
23d of April, 1784, relative to the subject of this ordinance, be, and the 
same are hereby repealed and declared null and void. 



CONSTITUTION 



OF THE 



UNITED STATES OE AMERICA. 



We, the people of the United States, in order to form a more perfect 
union, establish justice, insure domestic tranquillity, provide for the 
common defense, promote the general welfare, and secure the blessings 
of liberty to ourselves and our posterity, do ordain and establish this 
Constitution for the United States of America. 

ARTICLE I.— Section i. 

i. All legislative powers herein granted shall be vested in a Congress 
of the United States, which shall consist of a Senate and House of Rep- 
resentatives. 

Section 2. 

1. The House of Representatives shall be composed of members 
chosen every second year by the people of the several States ; and the 
electors in each State shall have the qualifications requisite for electors of 
the most numerous branch of the State legislature. 

2. No person shall be a Representative who shall not have attained to 
the age of twenty-five years, and been seven years a citizen of the United 
States, and who shall not, when elected, be an inhabitant of that State in 
which he shall be chosen. 

3. Representatives and direct taxes shall be apportioned among the 
several States which may be included within this Union, according to 

( xxxii ) 



APPENDIX. XXX111 

their respective numbers, which shall be determined by adding to the 
whole number of free persons, including those bound to service for a 
term of years, and excluding Indians not taxed, three fifths of all other 
persons. The actual enumeration shall be made within three years after 
the first meeting of the Congress of the United States, and within every 
subsequent term of ten years, in such manner as they shall by law direct. 
The number of Representatives shall not exceed one for every thirty 
thousand, but each State shall have at least one Representative ; and 
until such enumeration shall be made, the State of New Hampshire shall 
be entitled to choose three ; Massachusetts, eight; Rhode Island and 
Providence Plantations, one ; Connecticut, five ; New York, six ; New 
Jersey, four ; Pennsylvania, eight ; Delaware, one ; Maryland, six ; Vir- 
ginia, ten ; North Carolina, five ; South Carolina, five ; and Georgia, 
three. 

4. When vacancies happen in the representation from any State, 
the executive authority thereof shall issue writs of election to fill such 
vacancies. 

5. The House of Representatives shall choose their Speaker and other 
officers, and shall have the sole power of impeachment. 

Section 3. 

1. The Senate of the United States shall be composed of two Senators 
from each State, chosen by the legislature thereof, for six years; and 
each Senator shall have one vote. 

2. Immediately after they shall be assembled in consequence of the first 
election, they shall be divided, as equally as may be, into three classes. 
The seats of the Senators of the first class shall be vacated at the expira- 
tion of the second year, of the second class at the expiration of the fourth 
year, and of the third class at the expiration of the sixth year, so that 
one third may be chosen every second year ; and if vacancies happen, by 
resignation, or otherwise, during the recess of the legislature of any State, 
the executive thereof may make temporary appointments until the next 
meeting of the legislature, which shall then fill such vacancies. 

3. No person shall be a Senator who shall not have attained to the age 
of thirty years, and been nine years a citizen of the United States, and 
who shall not, when elected, be an inhabitant of that State for which he 
shall be chosen. 

4. The Vice-president of the United States shall be President of the 
Senate, but shall have no vote, unless they be equally divided. 



:::::: *~ zztd:::. 

~~ __ -. .'- -~ 

_ Li 

- 25. 

- ■ 1 

.::■ : 

nrcnrentc ; 

. 

_ 

- 
-cnrir jjwm<*nrmg?rr, ait'lllti: 

3 

"..-■::-;-::.:: ;■; I .- -rr-scriL-ri. :_ su.ii tote y be e£^r_i2i_xe 

. . .- . -r. ".:. 

: 

• ------ lamaSj ae&tmA 

~:;;:,; : :: : ~r__: -r~. ~. . --- ■■-\-_^- ; ___ - -.,' I'riitit-ie - 
---..___ : v_.i_.i-_s :"_: . __: _r _____ :-r ___v .__:•__!_ rp_n c__v o 

_ ' . _ 

- 

- "- ' - ' - :-__ 

:__iit___ _5_a__. x ______: 

: 
Li- ____ :" . . _ I 

- 

'. - - 

_:____■ _:_' . 
____- :.___. ___ - - _.:__ be nt I _____ ~ - ;'. - i:ti__" 



APPENDIX. XXXV 



Section 6. 



i. The Senators and Representatives shall receive a compensation for 
their services, to be ascertained by law, and paid out of the Treasury of 
the United States. They shall in all cases, except treason, felony, and 
breach of the peace, be privileged from arrest during their attendance at 
the session of their respective Houses, and in going to and returning from 
the same ; and for any speech or debate in either House, they shall not be 
questioned in any other place. 

2. No Senator or Representative shall, during the time for which he 
was elected, be appointed to any civil office under the authority of the 
United States which shall have been created, or the emoluments whereof 
shall have been increased, during such time ; and no person holding any 
office under the United States shall be a member of either House during 
his continuance in office. 

Section 7. 

1. All bills for raising revenue shall originate in the House of Repre- 
sentatives; but the Senate may propose or concur with amendments, as 
on other bills. 

2. Every bill which shall have passed the House of Representatives 
and the Senate, shall, before it become a law, be presented to the Presi- 
dent of the United States ; if he approve he shall sign it, but if not he 
shall return it with his objections to that House in which it shall have 
originated, who shall enter the objections at large in their journal, and 
proceed to reconsider it. If, after such reconsideration, two-thirds of that 
House shall agree to pass the bill, it shall be sent, together with the ob- 
jections, to the other House, by which it shall likewise be reconsidered, 
and if approved by two thirds of that House, it shall become a law. 
But in all such cases the votes of both Houses shall be determined by 
peas and nays, and the names of the persons voting for and against the 
bill shall be entered on the journal of each House respectively. If any 
bill shall not be returned by the President within ten days (Sundays ex- 
cepted) after it shall have been presented to him, the same shall be a law, 
in like manner as if he had signed it, unless the Congress, by their ad- 
journment, prevent its return, in which case it shall not be a law. 

3. Every order, resolution, or vote, to which the concurrence of the 
Senate and House of Representatives may be necessary (except on a ques- 
tion of adjournment) shall be presented to the President of the United 

A. C— 33. 



XXXVI APPENDIX. 

States, and before the same shall take effect shall be approved by him, or, 
being disapproved by him, shall be re-passed by two thirds of the Senate 
and House of Representatives, according to the rules and limitations pre- 
scribed in the case of a bill. 

Section 8. 

The Congress shall have power — 

i. To lay and collect taxes, duties, imposts, and excises, to pay the 
debts and provide for the common defense and general welfare of the 
United States ; but all duties, imposts, and excises shall be uniform 
throughout the United States ; 

2. To borrow money on the credit of the United States ; 

3. To regulate commerce with foreign nations, and among the several 
States, and with the Indian tribes ; 

4. To establish a uniform rule of naturalization, and uniform laws on 
the subject of bankruptcies throughout the United States ; 

5. To coin money, regulate the value thereof and of foreign coin, and 
fix the standard of weights and measures; 

6. To provide for the punishment of counterfeiting the securities and 
current coin of the United States ; 

7. To establish post-offices and post-roads ; 

8. To promote the progress of science and useful arts, by securing for 
limited times, to authors and inventors, the exclusive right to their re- 
spective writings and discoveries; 

9. To constitute tribunals inferior to the Supreme Court ; 

10. To define and punish piracies and felonies committed on the high 
seas, and offenses against the law of nations ; 

11. To declare war, grant letters of marque and reprisal, and make 
rules concerning captures on land and water ; 

12. To raise and support armies, but no appropriation of money to that 
use shall be for a longer term than two years ; 

13. To provide and maintain a navy ; 

14. To make rules for the government and regulation of the land and 
naval forces ; 

15. To provide for calling forth the militia to execute the laws of the 
Union, suppress insurrections, and repel invasions ; 

16. To provide for organizing, arming, and disciplining the militia, and 
for governing such part of them as may be employed in the service of the 
United States, reserving to the States respectively the appointment of the 
officers, and the authority of training the militia according to the disci- 
pline prescribed by Congreff . 



APPENDIX. XXXV11 

17. To exercise exclusive legislation in all cases whatsoever, over such 
district (not exceeding ten miles square) as may, by cession of particular 
States and the acceptance of Congress, become the seat of the Govern- 
ment of the United States, and to exercise like authority over all places 
purchased by the consent of the legislature of the State in which the 
same shall be, for the erection of forts, magazines, arsenals, dock-yards, 
and other needful buildings ; and, 

18. To make all laws which shall be necessary and proper for carrying 
into execution the foregoing powers, and all other powers vested by this 
Constitution in the Government of the United States, or in any depart- 
ment or officer thereof. 

Section 9. 

1. The migration or importation of such persons as any of the States 
now existing shall think proper to admit, shall not be prohibited by the 
Congress prior to the year one thousand eight hundred and eight, but a 
tax or duty may be imposed on such importation, not exceeding ten dol- 
lars for each person. 

2. The privilege of the writ of habeas corpus shall not be suspended, 
unless when in cases of rebellion or invasion the public safety may require 
it. 

3. No bill of attainder or ex post facto law shall be passed. 

4. No capitation or other direct tax shall be laid, unless in proportion 
to the census or enumeration hereinbefore directed to be taken. 

5. No tax or duty shall be laid on articles exported from any State. 
No preference shall be given by any regulation of commerce or revenue 
to the ports of one State over those of another ; nor shall vessels bound 
to or from one State be obliged to enter, clear, or pay duties in another. 

6. No money shall be drawn from the treasury but in consequence of 
appropriations made by law ; and a regular statement and account of the 
receipts and expenditures of all public money shall be published from 
time to time. 

7. No title of nobility shall be granted by the United States; and no 
person holding any office of profit or trust under them, shall, without the 
consent of the Congress, accept of any present, emolument, office, or 
title, of any kind whatever, from any king, prince, or foreign state. 

Section 10. 

1. No State shall enter into any treaty, alliance, or confederation; 
grant letters of marque and reprisal ; coin money; emit bills of credit; 



XXXV111 APPENDIX. 

make any thing but gold and silver coin a tender in payment of debts ; 
pass any bill of attainder, ex post facto law, or law impairing the obliga- 
tion of contracts, or grant any title of nobility. 

2. No State shall, without the consent of the Congress, lay any imposts 
or duties on imports or exports except what may be absolutely necessary 
for executing its inspection laws : and the net produce of all duties and 
imposts, laid by any State on imports or exports, shall be for the use of 
the treasury of the United States; and all such laws shall be subject to 
the revision and control of the Congress. No State shall, without the 
consent of Congress, lay any duty of tonnage, keep troops or ships of 
war in time of peace, enter into any agreement or compact with another 
State or with a foreign power, or engage in war, unless actually invaded, 
or in such imminent danger as will not admit of delay. 

ARTICLE II.— Section i. 



1. The Executive power shall be vested in a President of the United 
States of America. He shall hold his office during the term of four 
years, and, together with the Vice-president, chosen for the same term, 
be elected as follows : 

2. Each State shall appoint in such manner as the legislature thereof 
may direct, a number of Electors equal to the whole number of Senators 
and Representatives to which the State may be entitled in the Congress ; 
but no Senator or Representative, or person holding an office of trust or 
profit under the United States, shall be appointed an Elector. 

Clause 3 has been superseded by the 12th Article of Amendments ; for text 
see page 155. 

4. The Congress may determine the time of choosing the Electors, and 
the day on which they shall give their votes; which day shall be the same 
throughout the United States. 

5. No person, except a natural-born citizen, or a citizen of the United 
States at the time of the adoption of this Constitution, shall be eligible 
to the office of President ; neither shall any person be eligible to that 
office who shall not have attained to the age of thirty-five years, and been 
fourteen years a resident within the United States. 

6. In case of the removal of the President from office, or of his death, 
resignation, or inability to discharge the powers and duties of said office, 
the same shall devolve on the Vice-president ; and the Congress may by 
law provide for the case of removal, death, resignation, or inability, both 
of the President and Vice-president, declaring what officer shall then act 



APPENDIX. XXXIX 

as President, and such officer shall act accordingly, until the disability be 
removed, or a President shall be elected. 

7. The President shall, at stated times, receive for his services a com- 
pensation, which shall neither be increased nor diminished during the 
period for which he shall have been elected, and he shall not receive 
within that period any other emolument from the United States, or any 
of them. 

8. Before he enter on the execution of his office, he shall take the fol- 
lowing oath or affirmation : 

" I do solemnly swear (or affirm) that I will faithfully execute the office 
of President of the United States, and will, to the best of my ability, 
preserve, protect, and defend the Constitution of the United States." 

Section 2. 

1. The President shall be commander-in-chief of the army and navy of 
the United States, and of the militia of the several States when called 
into the actual service of the United States ; he may require the opinion, 
in writing, of the principal officer in each of the executive departments, 
upon any subject relating to the duties of their respective offices, and he 
shall have power to grant reprieves and pardons for offenses against the 
United States, except in cases of impeachment. 

2. He shall have power, by and with the advice and consent of the 
Senate, to make treaties, provided two thirds of the Senators present 
concur ; and he shall nominate, and by and with the advice and consent 
of the Senate, shall appoint Ambassadors, other public Ministers and 
Consuls, Judges of the Supreme Court, and all other officers of the United 
States, whose appointments are not herein otherwise provided for, and 
which shall be established by law ; but the Congress may by law vest the 
appointment of such inferior officers as they think proper, in the Presi- 
dent alone, in the Courts of law, or in the heads of Departments. 

3. The President shall have power to fill up all vacancies that may 
happen during the recess of the Senate, by granting commissions which 
shall expire at the end of their next session. 

Section 3. 

He shall, from time to time, give to the Congress information of the 
state of the Union, and recommend to their consideration such measures 
as he shall judge necessary and expedient ; he may, on extraordinary oc- 
casions, convene both Houses, or either of them, and in case of disagree- 



xl APPENDIX. 

ment between them with respect to the time of adjournment, he may 
adjourn them to such time as he shall think proper ; he shall receive 
ambassadors and other public ministers ; he shall take care that the laws 
be faithfully executed, and shall commission all the officers of the United 
States. 

Section 4. 

The President, Vice-president, and all civil officers of the United 
States, shall be removed from office on impeachment for, and conviction 
of, treason, briber)-, or other high crimes and misdemeanors. 

ARTICLE III.— Section i. 

The judicial power of the United States shall be vested in one Supreme 
Court, and in such inferior Courts as the Congress may from time to time 
ordain and establish. The Judges, both of the Supreme and inferior 
Courts, shall hold their offices during good behavior, and shall, at stated 
times, receive for their services a compensation which shall not be dimin- 
ished during their continuance in office. 

Section 2. 

1. The judicial power shall extend to all cases in law and equity arising 
under this Constitution, the laws of the United States, and treaties made, 
or which shall be made, under their authority ; to all cases affecting am- 
bassadors, other public ministers, and consuls ; to all cases of admiralty 
and maritime jurisdiction ; to controversies to which the United States 
shall be a party ; to controversies between two or more States ; between a 
State and citizens of another State ; between citizens of different States ; 
between citizens of the same State claiming lands under grants of different 
States ; and beteveen a State, or the citizens thereof, and foreign States, 
citizens, or subjects. 

2. In all cases affecting ambassadors, other public ministers, and con- 
suls, and those in which a State shall be a party, the Supreme Court shall 
have original jurisdiction. In all the other cases before mentioned, the 
Supreme Court shall have appellate jurisdiction both as to law and fact, 
with such exceptions and under such regulations as the Congress shall 
make. 

3. The trial of all crimes, except in cases of impeachment, shall be by 
jury ; and such trial shall be held in the State where the said crimes shall 
have been committed ; but when not committed within any State, the 



APPENDIX. xli 

trial shall be at such place or places as the Congress may by law have 
directed. 

Section 3. 

1. Treason against the United States shall consist only in levying war 
against them, or in adhering to their enemies, giving them aid and com- 
fort. No person shall be convicted of treason unless on the testimony of 
two witnesses to the same overt act, or on confession in open court. 

2. The Congress shall have power to declare the punishment of treason, 
but no attainder of treason shall work corruption of blood, or forfeiture, 
except during the life of the person attainted. 



ARTICLE IV.— Section i. 

Full faith and credit shall be given in each State to the public acts, 
records, and judicial proceedings of every other State. And the Congress 
may, by general laws, prescribe the manner in which such acts, records, 
and proceedings shall be proved, and the effect thereof. 

Section 2. 

1. The citizens of each State shall be entitled to all privileges and im- 
munities of citizens in the several States. 

2. A person charged in any State with treason, felony, or other crime, 
who shall flee from justice, and be found in another State, shall, on de- 
mand of the executive authority of the State from which he fled, be de- 
livered up, to be removed to the State having jurisdiction of the crime. 

3. No person held to service or labor in one State, under the laws 
thereof, escaping into another, shall, in consequence of any law or regu- 
lation therein, be discharged from such service or labor, but shall be de- 
livered up on claim of the party to whom such service or labor may be 
due. 

Section 3. 

1. New States may be admitted by the Congress into this Union ; but 
no new State shall be formed or erected within the jurisdiction of any 
other State ; nor any State be formed by the junction of two or more 
States, or parts of States, without the consent of the legislatures of the 
States concerned as well as of the Congress. 



xlii APPENDIX. 

2. The Congress shall have power to dispose of and make all needful 
rules and regulations respecting the territory or other property belong- 
ing to the United States ; and nothing in this Constitution shall be so 
construed as to prejudice any claims of the United States, or of any par- 
ticular State. 

Section 4. 

The United States shall guaranty to every State in this Union a repub- 
lican form of government, and shall protect each of them against inva- 
sion ; and, on application of the legislature, or of the Executive (when 
the legislature can not be convened) against domestic violence. 

ARTICLE V. 

The Congress, whenever two-thirds of both Houses shall deem it 
necessary, shall propose Amendments to this Constitution, or, on the 
application of the legislatures of two thirds of the several States, shall 
call a convention for proposing Amendments, which, in either case, shall 
be valid to all intents and purposes as part of this Constitution, when 
ratified by the legislatures of three fourths of the several States, or by 
conventions in three fourths thereof, as the one or the other mode of rati- 
fication may be proposed by the Congress : provided, that no Amendment 
which may be made prior to the year one thousand eight hundred and 
eight shall in any manner affect the first and fourth clauses in the ninth 
section of the first article ; and that no State, without its consent, shall 
be deprived of its equal suffrage in the Senate. 

ARTICLE VI. 

1. All debts contracted and engagements entered into, before the adop- 
tion of this Constitution, shall be as valid against the United States under 
this Constitution as under the Confederation. 

2. This Constitution, and the laws of the United States which shall be 
made in pursuance thereof, and all treaties made, or which shall be made, 
under the authority of the United States, shall be the supreme law of the 
land; and the judges in every State shall be bound thereby, any thing in 
the constitution or laws of any State to the contrary notwithstanding. 

3. The Senators and Representatives before mentioned, and the mem- 
bers of the several State legislatures, and all executive and judicial offi- 
cers, both of the United States and of the several States, shall be bound 



appendix. xliii 

by oath, or affirmation, to support this Constitution ; but no religious test 
shall ever be required as a qualification to any office or public trust under 
the United States. 

ARTICLE VII. 

The ratification of the Conventions of nine States shall be sufficient for 
the establishment of this Constitution between the States so ratifying the 
same. 



AMENDMENTS TO THE CONSTITUTION. 

ARTICLE I. 

Congress shall make no law respecting an establishment of religion, or 
prohibiting the free exercise thereof; or abridging the freedom of speech 
or of the press ; or the right of the people peaceably to assemble, and to 
petition the government for a redress of grievances. 

ARTICLE II. 

A well-regulated militia being necessary to the security of a free state, 
the right of the people to keep and bear arms shall not be infringed. 

ARTICLE III. 

No soldier shall, in time of peace, be quartered in any house without 
the consent of the owner, nor in time of war, but in a manner to be pre- 
scribed by law. 

ARTICLE IV. 

The right of the people to be secure in their persons, houses, papers, 
and effects, against unreasonable searches, and seizures, shall not be vio- 
lated, and no warrants shall issue, but upon probable cause, supported by 
oath or affirmation, and particularly describing the place to be searched, 
and the persons or things to be seized. 

ARTICLE V. 

No person shall be held to answer for a capital or otherwise infamous 
crime, unless on a presentment or indictment of a grand jury, except in 



xllV • v APPENDIX. 

cases arising in the land or naval forces, or in the militia when in actual 
service in time of war or public danger; nor shall any person be subject 
for the same offense to be twice put in jeopardy of life or limb ; nor shall 
be compelled in any criminal case to be a witness against himself; nor be 
deprived of life, liberty, or property, without due process of law ; nor 
shall private property be taken for public use without just compensation. 

ARTICLE VI. 

In all criminal prosecutions, the accused shall enjoy the right to a 
speedy and public trial, by an impartial jury of the State and district 
wherein the crime shall have been committed, which district shall have 
been previously ascertained by law, and to be informed of the nature and 
cause of the accusation ; to be confronted with the witnesses against him ; 
to have compulsory process for obtaining witnesses in his favor, and to 
have the assistance of counsel for his defense. 

ARTICLE VII. 

In suits at common law where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be preserved, and no fact 
tried by a jury shall be otherwise re-examined in any Court of the United 
States, than according to the rules of the common law. 

ARTICLE VIII. 

Excessive bail shall not be required, nor excessive fines imposed, nor 
cruel and unusual punishments inflicted. 

ARTICLE IX. 

The enumeration in the Constitution of certain rights shall not be con- 
strued to deny or disparage others retained by the people. 

ARTICLE X. 

The powers not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States respectively, or to 
the people. 



APPENDIX. xlv 



ARTICLE XI. 

The judicial power of the United States shall not be construed to 
extend to any suit in law or equity commenced or prosecuted against one 
of the United States by citizens of another State, or by citizens or sub- 
jects of any foreign State. 

ARTICLE XII. 

I. The Electors shall meet in their respective States, and vote by ballot 
for President and Vice-president, one of whom, at least, shall not be an 
inhabitant of the same State with themselves ; they shall name in their 
ballots the person voted for as President, and in distinct ballots the person 
voted for as Vice-president, and they shall make distinct lists of all per- 
sons voted for as President, and of all persons voted for as Vice-president, 
and of the number of votes for each, which lists they shall sign and certify, 
and transmit sealed to the seat of the government of the United States, 
directed to the President of the Senate. The President of the Senate 
shall, in the presence of the Senate and House of Representatives, open 
all the certificates, and the votes shall then be counted ; the person hav- 
ing the greatest number of votes for President shall be the President, if 
such number be a majority of the whole number of Electors appointed ; 
and if no person have such majority, then from the persons having the 
highest numbers, not exceeding three, on the list of those voted for as 
President, the House of Representatives shall choose immediately, by 
ballot, the President. But in choosing the President, the votes shall be 
taken by States, the representation from each State having one vote ; a' 
quorum for this purpose shall consist of a member or members from two 
thirds of the States, and a majority of all the States shall be necessary to 
a choice. And if the House of Representatives shall not choose a Presi- 
dent, whenever the right of choice shall devolve upon them, before the 
fourth day of March next following, then the Vice-president shall act as 
President, as in the case of the death or other constitutional disability of 
the President. The person having the greatest number of votes as Vice- 
president shall be the Vice-president, if such number be a majority of the 
whole number of Electors appointed, and if no person have a majority, 
then from the two highest numbers on the list the Senate shall choose the 
Vice-president ; a quorum for the purpose shall consist of two thirds of 
the whole number of Senators, and a majority of the whole number shall 



xlvi APPENDIX. 

be necessary to a choice. But no person constitutionally ineligible to the 
office of President shall be eligible to that of Vice-president of the 
United States. 

ARTICLE XIII. 

1. Neither Slavery nor involuntary servitude, except as a punishment 
for crime, whereof the party shall have been duly convicted, shall exist 
within the United States, or any place subject to their jurisdiction. 

2. Congress shall have power to enforce this article by appropriate 
legislation. 

ARTICLE XIV. 

1. All persons born or naturalized in the United States, and subject to 
the jurisdiction thereof, are citizens of the United States and of the State 
wherein they reside. No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the United States ; nor 
shall any State deprive any person of life, liberty, or property, without 
due process of law, nor deny to any person within its jurisdiction the 
equal protection of the laws. 

2. Representatives shall be apportioned among the several States ac- 
cording to their respective numbers, counting the whole number of per- 
sons in each State, excluding Indians not taxed. But when the right to 
vote at any election for the choice of electors for President and Vice- 
president of the United States, Representatives in Congress, the executive 
and judicial officers of a State, or the members of the legislature thereof, 
is denied to any of the male inhabitants of such State, being twenty-one 
years of age, and citizens of the United States, or in any way abridged, 
except for participation in rebellion or other crime, the basis of represen- 
tation therein shall be reduced in the proportion which the number of 
such male citizens shall bear to the whole number of male citizens 
twenty-one years of age in such State. 

3. No person shall be a Senator or Representative in Congress, or 
elector of President and Vice-president, or hold any office, civil or mili- 
tary, under the United States, or under any State, who, having previously 
taken an oath, as a member of Congress, or as an officer of the United 
States, or as a member of any State legislature, or as an executive or 
judicial officer of any State, to support the Constitution of the United 
States, shall have engaged in insurrection or rebellion against the same, 
or given aid or comfort to the enemies thereof. But Congress may, by a 
vote of two thirds of each House, remove such disability. 



APPENDIX. Xlvii 

4. The validity of the public debt of the United States, authorized by 
law, including debts incurred for payment of pensions and bounties for 
services in suppressing insurrection or rebellion, shall not be questioned. 
But neither the United States nor any State shall assume or pay any debt 
or obligation incurred in aid of insurrection or rebellion against the 
United States, or any claim for the loss or emancipation of any slave ; 
but all such debts, obligations, and claims shall be held illegal and void. 

5. The Congress shall have power to enforce, by appropriate legisla- 
tion, the provisions of this article. 

ARTICLE XV. 

1. The right of citizens of the United States to vote shall not be 
denied or abridged by the United States, or by any State, on account of 
race, color, or previous condition of servitude. 

2. The Congress shall have power to enforce this article by appropriate 
legislation. 



INDEX. 



Academy, military, 311; naval, 314. 

Adams, John, President, 298; Vice-presi- 
dent, App., i. 

Adams, John Quincy, President, 299. 

Agriculture, department of, 320. 

Alabama, secession of, 225 ; reconstruction 
of, 228; admission of, 281. 

Alaska, 294. 

Alloy of gold and silver coins, 99. 

Ambassadors, etc., 302. 

Amendments to the Constitution, clause 
regarding, 230; nineteen proposed, fif- 
teen ratified, 231, 244; three limitations, 
231 ; difficulties in the way of, 232 ; ap- 
proval of President not necessary, 233; 
publication of, 231 ; can a State with- 
draw her ratification of, 234 ; dates of, 
237; first, 215; second, third, fourth, 
fifth, 247; sixth, seventh, eighth, 248; 
ninth, tenth, 249; eleventh, twelfth, 
thirteenth, 232; fourteenth, 254; fif 
teenth, 260; list of, App., xliii. 

Amendments to Ohio constitution, 345. 

Amnesty, action of Congress as to, 166 ; 
proclamations of, 258. 

Annapolis, Convention of 1786, 39; recom- 
mended a convention to revise Articles 
of Confederation, 40. 

Appellate jurisdiction of U. S. Courts, 192, 
193 ; two views of, 194. 

Appointments by the President, 167, 175 ; 
power of Congress over, 167; by heads 
of departments, 167. 

Apportionment of Representatives, 49-54. 

Appropriations, 143. 

Area of the United States, 294. 

Arizona Territory, 287, 293. 

Arkansas, secession of, 225 ; action of, 226 ; 
reconstruction of, 228 ; admission of, 282. 

Armies, power of Congress as to, 122. 



Army, regular, 123; list of officers in, 124; 
rules for the government of, 125,126; 
pay of officers, 312. 

Arthur, Chester A., President, 300; Vice- 
president, App., i. 

Articles of Confederation, adopted by 
Congress 1777 ; ratified by the States 
March 1, 1781, 35; failure of, 35-38; 
provisions as to States, 144-149; amend- 
ment of, 230-237 ; Appendix, xvii. 

Assessor of Internal Revenue, 309. 

Assessor, township officer in Ohio, 341. 

Attorney-General, duties of, 186; office of 
established, 323 ; salary of, 324 ; list of, 
App., ix ; assistants, 324, 325. 

Auditors of the treasury, 305, 306. 

Auditor, state and county in Ohio, 332, 
338. 



Bank currency, 104-107. 

Bankrupt, allowance to, 92; discharge of, 
93; influence of creditors, 93 ; moral ob- 
ligations of, 94. 

Bankruptcies, 87 ; limited to traders orig- 
inally, 92; power formerly in the States, 
93; three acts passed, 93 ; voluntary and 
involuntary, 93. 

Bill of attainder, 140; case ex parte Gar- 
land, 141 ; forbidden to States, 144. 

Bill of rights, not in original constitution, 
245; in first eight amendments, 245; the 
constitution a, 249; in Ohio, 330. 

Bills, how passed in Congress, 75; in Ohio, 
68, 332. 

Bills of Credit, treasury notes, 101 ; States 
can not emit, 144 ; defined, 146; emitted 
by Congress, 148. 

Blount, Wm., expelled, 69 ; impeached, 
180. 

Bonds of U. S., 83; not taxable, 84. 

(xlix) 



1 



INDEX. 



Breckenridge, J. C, Vice-president, App., i. 

Bright, Jesse D., expelled from Senate, 69. 

British Parliament, cabinet officers mem- 
bers of, 74; power of, 195: may amend 
constitution, 232. 

Buchanan, James, President, 300. 

Bureaus, in the departments, 301 ; names 
of in Treasury Department, 305. 

Burr, Aaron, tried for treason, 206 ; Vice- 
president, App., i. 



Cabinet officers, 300 ; salaries of, 301. 

Cadet-midshipmen and engineers, 314, 315. 

Calhoun, John C, Vice-president, App., i. 

California, admission of, 287. 

Capitation tax, clause as to, 141. 

Carriers, for free delivery of letters, 112. 

Census, 50; Superintendent of, 320. 

Cession of territory by various States, 216. 

Charge d' Affaires, 303. 

Charter governments (colonial), 24-26. 

Chase, Samuel, impeached, 181. 

Circuit Courts, established, 1S3. 

Cities, in Ohio, 343. 

Citizens, denned, 87, 210, 211, 254; Judge 
Taney in Dred Scott case, 211; not 
necessarily voters, 257; right to vote, 
260 ; free negroes citizens in 1781, 212. 

Citizenship, privileges of, 210, 211. 

Civil Rights Bill, 211, 255. 

Civil Service Reform, 174. 

Clerk of House of Representatives, 55. 

Clerks, in departments, 325. 

Cleveland, Grover, President, 200. 

Clinton, George, Vice-president, App., i. 

Coast Survey, 309. 

Coinage, 94; international, 107. 

Coinage of money forbidden to States, 144. 

Coins, 95; of 1873, 98; foreign, 100. 

Colfax, Schuyler, Vice-president, App., i. 

Collector of Internal Revenue, 309; of 
Customs, 310. 

Colonies, the thirteen, 23; government of, 
24; colonial union of 1643, 27; meeting at 
Albany, 27 ; at New York, 1765, 28. 

Colorado, 292; bill to admit as a State 
vetoed, 292 ; admission of, 292. 

Commerce, power of Congress to regulate, 
85 ; formerly in the States, 88. 



Commissioners, county, in Ohio, 337. 

Commissioner, term not now applied to 
diplomatic representatives, 303; of Cus- 
toms, 308 ; of Internal Revenue, 309; of 
Patents, 116, 317 ; of Pensions, 317 ; of 
Land Office, 317 ; of Indian Affairs, 319. 

Committees of Congress, 296. 

Committee of the Whole, 297. 

Compensation of Congressmen, 71 ; none 
in British Parliament, 71; various rates 
in Congress, 72. 

Comptroller of the Currency, 308. 

Comptroller of the Treasury, 306. 

Confederation, see Articles of. 

Congress, of two Houses, 47; new one every 
two years, 60 ; annual sessions, 66 ; in- 
stances of three sessions, 67, 177 : a ma- 
jority a quorum, 6S; each House the judge 
as to its own members, 68 ; members priv- 
ileged from arrest, 71 ; members can hold 
no other office, 73 ; organization of the 
first, 272 ; powers of, 78; punishes treason, 
206. 

Connecticut, no constitution but its co- 
lonial charter till 1818, 26 ; ratification of 
the Constitution by, 269. 

Constitution of Ohio, 330-345. 

Constitution the, the work of the nation, 15; 
of the nation distinguished from that of 
the government, 15; unwritten, 16; re- 
ception of, 268 ; ratification of, 269 ; App., 
xxxii. 

Consul-General, 304. 

Consuls, 304. 

Contempt, power of Congress to punish, 69. 

Continental Congress, First, 30; Second, 
31 ; action of, as to the Constitution, 267, 
272. 

Contracts, States can not pass laws impair- 
ing obligation of, 144 ; United States as 
to, 148 ; include grants, case of Dart- 
mouth College, 14S. 

Convention of 1787, 40, 241, 242, 264 ; reso- 
lutions of, 265; secret proceedings, 268. 

Copyrights, Congress may issue, 114 ; for- 
merly issued by the States, 115; term of, 
115 ; mode of obtaining, 115 ; interna- 
tional, 115. 

Coroner, in Ohio, 339. 

Corporations, in Ohio, 343. 



INDEX. 



Corruption of blood in treason, 206; misin- 
terpreted, 207, 208. 

Counterfeiting, 109 ; laws in force, 109 ; act 
of 1884, 110. 

County government in Ohio, 335-340. 

Court of Claims, 185. 

Courts of Great Britain, sphere of, 194. 

Courts of Ohio, 333. 

Courts of U. S., three classes of, 183, 185 ; 
officers of, 186; not open to citizens of 
District of Columbia and the Territories, 
192 ; powers, 195. 

Currency, Bureau of, 308. 

Customs, Commissioner of, 308; Collector 
of, other officers, 310 J revenue from, 
1886, 83. 



Dakota Territory, 293. 

Dallas, George M., Vice-president, App., i. 

Debt, public of U. S., 84 ; validity of, 259. 

Declaration of Independence, App., xiii. 

Delaware, ratification of the Constitution, 
269; first constitution, 329. 

Delegated powers, 249-252 ; to States, 331. 

Democracy defined, 18. 

Departments, three, 47; Legislative 47-151, 
295-298; Executive, 151-182, 298-325; 
Judicial, 182-209, 325-327. 

Designs, patents for, 116. 

Director of the Mint, 309. 

Direct taxes, 79; laid by U. S. but five 
times, 80 ; act of 1861, 80 ; clause as to, 
141. 

Disabilities, removal of, 258. 

District Courts established, 183. 

District of Columbia, clause regarding, 
128; history of, 128, 129; Congress has 
power over,129, 130 ; slavery in, abolished 
1862, 131 ; government in, 131. 

Dollar, Spanish, milled, 95 ; weight in 1792, 
95 ; in 1853, 97 ; trade-dollar, 98. 

Duties, power of Congress to lay, 78; act 
of 1789, 80; protection of manufactures, 
81; must be uniform, 78; on exports for- 
bidden, 142 ; forbidden to the States, 149. 

E 

Education, office of, 320; Commissioner 
of, 320; in constitution of Ohio, 334, 341. 



Elections for Congressmen, 65. 

Electors of President and Vice-president, 

153, 161. 
Eleventh Amendment, 252. 
Emancipation, proclamations of, 137. 
Embargo act of 1807, 86. 
Envoys Extraordinary and Ministers Pleni- 
potentiary, 302. 
Excises, power of Congress to lay, 78; 

meaning of, 81 ; act of 1791, 81. 
Executive Council in certain States, 346. 
Executive Department, 151-182; 298-325; 

in State of Ohio, 332. 
Expatriation, act of 1868, 90; treaties in 

regard to, 90. 
Expenditures must be published, 143. 
Exports, value of for 1886, 87 ; duties on 

forbidden, 142, 149. 
Ex post facto law forbidden, 140; case ex 

parte Garland, 141 ; forbidden to States, 

144. 
Expulsion, 69; cases in Senate, 69. 
Extradition, 213. 



Faith and credit to be given to the public 
acts, 209 ; mode of doing it, 210. 

Fifteenth Amendment, 200, 261. 

Fillmore, Millard, President, 299; Vice- 
president, App., i. 

Finance, in constitution of Ohio, 342. 

Fines, excessive, forbidden, 249. 

Florida, purchase of, 218; secession of, 
225; reconstruction of, 228; admitted 
into the Union, 284. 

Fourteenth Amendment, 254, 260. 

Franchise, elective, in Ohio, 333. 

Franking privilege, 113; abolished, 113. 

Freedom of speech and of the press, 245, 
246. 

Fugitives from justice given up, 212; law 
of 1793, 213; from another nation, 213. 

Fugitives from labor to be given up, 214; 
laws of 1793 and 1850 repealed, 214. 



Gallatin, Albert, as Senator, 62. 
Garfield, James A., President, 300. 
General, office of, 123; pay of, 312. 
Georgia, but one legislative House in 1787, 



lii 



INDEX. 



47 ; secession of, 225 ; reconstruction of, 
228 ; ratification of the Constitution by, 
269; first constitution, 330. 

Gerry, Elbridge, Vice-president, App., i. 

Gold, used for money, 94; reduction of 
coins in 1834, 97 ; a legal tender, 97, 98 ; 
ratio to silver, 97, 98; the only standard 
in Eagland, 98; coinage of 1873, 98; the 
unit since 1873, 98, 100. 

Government, civil, 9; object of, 10; not 
merely repressive, 11 ; not a necessary 
evil, 11 ; forms of, 17. 

Government of the United States, 19-21 ; 
of States. 328-348. 

Governor, in Ohio, 332. 

Grand jury, 200, 247,248. 

Grant, Ulysses S., President, 300. 

Great Britain, government of, 17, 18; im- 
peachment in, 63, 64; cabinet officers in 
Parliament, 74; legislative sphere in, 
195. 

Guaranty of republican form of govern- 
ment to the States, 222-230. 

H 

Habeas Corpus, the writ of, 137-140. 
Hamlin, Hannibal, Vice-president, App., i. 
Harrison, William H., President, 299. 
Hayes, Rutherford B. President, 300. 
Heads of departments, 164, 167. 
High treason, 204. 
Home Department, 316. 
Humphries, West H., impeached, 181, 182. 

I 

Idaho Territory, 291. 

Illinois, admission of, 280. 

Impeachment, power of in House of Rep- 
resentatives, 55; method of, 55; power 
of trial in Senate, 63; if President is 
tried, Chief Justice presides, 64 ; seven 
cases, 64; punishment for, 64; officers 
liable to, 179; cases of, 181; two con- 
victions for, 181, 182. 

Implied powers of Congress, 132 ; views of 
Madison, Hamilton, Marshall, Story, 
133, 134; reasons for, 134, 135; instances 
of, 135, 136. 

Import duties in 1789, 81. 

Imports, value of for 1886, 87. 



Imposts, power of Congress to lay, 78. 

Income tax, first levied in 1861, 82. 

Independence, resolution for and declara- 
tion of, 33 ; Declaration of, App., xiii. 

Indiana, admission of, 280; Territory of, 279. 

Indian affairs, Commissioner of, 319. 

Indian country, 294. 

Indians, in the United States, 85-87. 

Indictment, 200, 201; or presentment nec- 
essary for trial, 201, 247. 

Indirect taxation, 79. 

Infirmary, county, in Ohio, 340. 

Inspection laws, 149. 

Interior, Department of, 316-321; salary 
of Secretary of, 317. 

Internal Revenue, system begun in 1791, 
81; act of 1862, 81; Bureau of, 309; 
amount of, in 1866 and 1886, 309. 

Invasion, protection from, 222. 

Iowa, admission of, 285. 

J 

Jackson, Andrew, President, 299. 

Jefferson, Thomas, President, 299; Vice- 
president, App., i. 

Johnson, Andrew, impeached, 181, 182; 
President, 300 ; Vice-president, App., i. 

Johnson, Richard M., Vice-president, 
App., i. 

Journal of proceedings, 69. 

Judge-Advocate- General, 311. 

Judges, term of office, 182-185; compensa- 
tion of, 183, 186; two classes of, 183; 
in 1869, three classes, 183; resignation 
of, 186 ; in different States, 346. 

Judicial circuits, 326. 

Judicial power, where vested, 182; its ex- 
tent, 187. 

Judicial system, of Ohio, 333. 

Judiciary, act of 1789, 183, 186, 191, 194, 
199. 

Jurisdiction, 192,193; two views, 194. 

Jury, grand and petit, 200. 

Jury trial, 198, 203; in criminal prosecu- 
tions, 248 ; in other cases, 248. 

Justice, Department of, 323-325; salaries 
of officers of, 325. 

K 

Kansas, admission of, 289. 



INDEX. 



liii 



Kentucky, admission of, 276 ; from Vir- 
ginia, 276. 
King, William R., Vice-president, App., i. 
Ku-Klux bill, 255. 



Land Office, 317. 

Legal tender notes, 102. 

Legislation, mode of, 296. 

Legislative Department, 47-151; 295-298: 
in Ohio, 331. 

Legislatures, State, 346. 

Lieutenant-General, office of, 123. 

Light-house Board, 310. 

Lincoln, Abraham, President, 300. 

Louisiana, purchase of, 218, 279 ; seces- 
sion of, 225; action of, 226; reconstruc- 
tion of, 228; admission of, 279. 

M 

Madison, James, President, 298. 

Magna Charta, quoted, 198. 

Maine, admission of, 281. 

Male citizens, right of to vote, 257. 

Marque, letters of, 120; signification of, 

121 ; forbidden to States, 144. 
Maryland, ratification of the Constitution 

by, 267; first constitution, 329. 
Massachusetts, ratification of the Consti- 
tution by, 269; first constitution of, 330. 
Metric system, 108. 
Michigan, admission of, 283. 
Military Academy at West Point, 811; Jus- 
tice, Bureau of, 311. 
Militia, Congress may call forth, etc. ; laws, 
126; called out three times, 126; number 
in war of the rebellion, 127; necessary, 
247. 
Ministers Plenipotentiary, salaries of, 303. 
Ministers Resident, salaries of, 303. 
Minnesota, admitted, 287. 
Mint, established, 94; branches, 95; a 

bureau, 309. 
Mississippi, secession of, 225 ; reconstruc- 
tion of, 228 ; admission of, 280. 
Missouri Compromise, 282, 285, 289. 
Missouri, in 1861, 226; admission of, 281. 
Monarchy, 18. 
Money, Congress has power to borrow, 88, 



84 ; has power to coin and regulate, 94 ; 

defined, 95 ; history of, 95-100. 
Monroe, James, President, 299. 
Montana Territory, 293. 

N 

National Banks, established in 1863, 105 ; 
amount of circulation, 106; advantages 
of, 106; number of, 309. 

Nation, the, 15. 

Naturalization, power of in Congress, 87; 
under Confederation, States had the 
power of, 88; laws of, 88; present mode, 
90; case of soldiers, 89; of seamen, 89; 
restricted, 90; suffrage without, 91; in 
districts, 92 ; law of 1870, 92. 

Naval stations, 313. 

Navy, Congress has power to provide a, 
123 ; officers in, 124 ; government of, 125 ; 
Department of, 312-316; salary of Secre- 
tary, 313. 

Navy Yards, 313. 

Nebraska, admission of, 292. 

Nevada, admission of, 291. 

New Hampshire, ratification of the Con- 
stitution by, 269; temporary government 
in 1776, 329. 

New Jersey, ratification of the Constitu- 
tion by, 2G9 ; temporary government in 
1776, 329. 

New Mexico Territory, 293. 

New States, 215; no general provision for 
admitting in Articles of Confederation, 
215; twenty-five admitted, 215; mode of 
admitting, 221. 

New York, ratification of the Constitution 
by, 270; first constitution, 330. 

Nobility, no titles of shall be granted, 144; 
proposed amendment touching, 262. 

North Carolina, secession of, 225; recon- 
struction of, 228 ; ratification of the Con- 
stitution by, 271; ceded her territory, 
276; first constitution, 330. 

North-west Territory, 278; divided, 279; 
ordinance for, App., xxv. 

Nullification of South Carolina, 238. 



Oath of office, of President, 164 ; required 
of officers, 238, 239 ; statutes, 239, 240. 



liv 



INDEX. 



Observatory, Naval, 313. 

Ohio, admission of, 277-279 ; constitution 

of, 330-345. 
Ordinance of 1787, 278 ; App., xxv. 
Oregon, admission of, 288. 
Original jurisdiction of courts, 192, 193. 



Pardons, power to grant, in the Presi- 
dent, 164, 165 ; before conviction, 165. 

Patent Office, established, 116; receipts of, 
118; reports, 124; a bureau in the De- 
partment of the Interior, 317. 

Patents, power over in Congress, 114; 
history of, 116 ; Commissioner of, 116 ; 
for term of seventeen years, 116 ; for- 
merly by the States, 116; mode of ob- 
taining, 117. 

Pay of Army officers, 312 ; of privates, 312 ; 
of Navy officers, 315 ; of seamen, 316. 

Peck, James H., impeached, 181. 

Pennsylvania, its legislature in 1787, 47; 
ratification of the Constitution by, 269 ; 
first constitution, 329. 

Pension Office, 317. 

People, right of to assemble, 245, 246 ; 
the source of power, 251, 347. 

Petit treason, 204. 

Pickering, John, impeached, 181. 

Pierce, Franklin, President, 299. 

Piracy, clause concerning, 119. 

Political powers, 195, 219. 

Polk, James K., President, 299. 

Postage, 111; letter, 112. 

Postal, cards, 112 ; money-order system, 
112; telegraph, 114. 

Postmasters, 110, 111. 

Postmasters-General, salary of, 322; list of, 
App., viii; Assistants, 322. 

Post-office, Congress has power to estab- 
lish, 110: number of in 1790 and 1886, 
110; Department established, 322. 

Post-roads, Congress has power to estab- 
lish, 113; internal improvements, 113. 

Pound Sterling, value of, 101. 

Powers not delegated, 249; none delegated 
by the States, 251. 

Presentment, 200, 247. 

Presents from foreign powers, 144; pro- 
posed amendment, 144, 262. 

President of United States, has veto power, 



75 ; term of office, 151 ; seven re-elections, 
153 ; mode of electing, 153-160 ; Amend- 
ment in regard to electing, 155 : chosen 
by House of Representatives twice, 157; 
qualifications of, 161 ; case of removal 
of, 161-163 ; compensation of, 163 ; oath 
of office, 164; commander-in-chief of the 
army and navy, 164 ; power to reprieve 
or pardon, 165 ; power as to treaties, 167; 
power as to appointments, 167; power to 
fill vacancies in recess of Senate, 175 ; 
annual message, 176, 177 ; may call special 
sessions, 177 ; may adjourn Congress, 
176; shall receive ambassadors, 176, 178; 
shall see that laws are executed, 176, 178 ; 
list of, 298-300. 

President pro tempore of Senate, 63 ; com- 
pensation of, 72 ; list of, App., ii. 

Press, freedom of, 245, 246. 

Probate Court, Ohio, 333. 

Proprietary governments, 24-26. 

Provincial, or royal governments, 21-26. 

Public debt of U. S., amount of, 84; valid- 
ity of, 259 ; incurred in aid of rebellion 
declared void, 2")9. 

Punishments, cruel and unusual, 248. 



Quorum, a majority, in Congress, 68; in 
Ohio, 332. 



Ratification, of an amendment to the 
Constitution; can a State withdraw her, 
234 ; by disloyal States, 236 ; of the Con- 
stitution by conventions, 241, 242; case 
of Rhode Island and North Carolina, 243. 

Rebellion, disabilities from, 258. 

Reconstruction of States, 225-228; West 
Virginia and Missouri, 226. 

Recorder, county officer in Ohio, 339. 

Register of the Treasury, duties of, 308. 

Registration of letters, 112. 

Religion, law respecting, 245 ; free exer- 
cise of guarantied, 245, 246. 

Religious Test for office prohibited, 239; 
action of South Carolina, 240. 

Removal from office, 171-175. 

Reporters of the Supreme Court, 187. 

Representation, 49-53; basis of, 52; ratios 
the successive decades, 54. 



INDEX. 



lv 



Representatives, term of office, 48; how 
chosen, 48; qualifications, 48; apportioned 

i among the States, 50; number in First 
Congress, 50 ; numbeis n successive dec- 
ades, 54; vacancies, how filled, 54, 55; 
choose their Speaker, 55; have power to 
impeach, 55; number of, reduced, if the 
right to vote be denied, 256; number of, 
262; compensation of, 262; in State leg- 
islatures, 346. 

Reprieves, power to grant, 165-167. 

Reprisal, letters of marque and, 120; sig- 
nification of, 121; forbidden to States, 144. 

Republican form of government guarantied 
to the States, 223; defined, 221. 

Republic, defined, 18. 

Retired officers, of the army, pay of, 312; 
of the navy, 316. 

Revenue, bills originate in House of Rep- 
resentatives, 74; Commissioner of Inter- 
nal, 82; amount of, 83. 

Rhode Island, no constitution till 1842, 26; 
ratificacion of the Constitution by, 271 ; 
first constitution, 330. 

Rights, enumeration of, 249; difference 
between political and civil, 257. 

Rules of proceedings, 69. 



Science, clause for promoting, 114. 

Searches and seizures, 247. 

Secession, of eleven States, 225; doctrine 
of, discussed, 228-230. 

Secretaries of State, list of, App., iii; six 
became Presidents, App., ix. 

Secretaries of the Interior, list of, App., 
viii. 

Secretaries of the Navy, list of, App., vii. 

Secretaries of the Treasury, list of, App., 
iv. 

Secretaries of War, list of, App., vi. 

Secretary of Legation, 303. 

Senate, how composed, 56; differences in 
convention as to, 57; a permanent body, 
60; vacancies, how filled, 60; Vice-presi- 
dent the president of, 62; President pro 
tempore, 63; power to try impeach- 
ments, 63. 

Senators, how elected, 58; divided into 
three classes, 59; doctrine of "instruc- 



tion,'' 61; qualifications, 61; in State 
legislatures, 346. 

Sessions of Congress, annual, 66; thirteen 
instances of three by same Congress, 67. 

Signal office, 311. 

Signers of Declaration of Independence, 
App., xvi. 

Silver, reduction of, in coins, in 1853, 97; 
legal tender for small sums since 1853, 
98; ratio to gold, 98: coins of 1873, 98; 
trade-dollar, 99. 

Slavery, abolished in U. S., 137, 252; word 
first used, 252; proposed amendment as 
to, 263. 

Slaves, importation of, clause regarding, 
136; prohibited in 1808,136; summary as 
to Slavery and the slave trade, 136, 137; 
payments for emancipation of, forbidden, 
259. 

"Social Compact,'' meaning of, 12; not 
the source of civil authority, 13; the fal- 
lacy of the theory, 13. 

Society, the natural state of man, 12; its 
authority, 12 ; of divine origin, 13. 

Soldiers, not to be quartered in houses 
without consent, 247. 

Solicitor-General, 324, 325. 

South Carolina, secession of, 225 ; recon- 
struction of, 228; ratification of the Con- 
stitution by, 269; temporary govern- 
ment in 1776, 329. 

Sovereignty in the nation, 15, 347. 

Speakers of House of Representatives, 55; 
salary of, 72; list of, App., ii. 

Special Sessions of Congress, 177. 

Speech, freedom of, 245, 246. 

Spirit ration abolished in Navy, 316. 

Stamp duties, 81-83. 

State Department, 301-305; duties of, 301; 
salary of the Secretary, 302. 

States, their relation to the nation, 20; 
prohibitions on, 144-151, 254; have not 
exercised powers of sovereignty, 145 ; 
out of the Union, not supposable, 221; 
not compelled to remain such, 221 ; guar- 
anty to, of a republican form of govern- 
ment, 222, 223; duties on, enjoined by 
the Constitution, 223, 224 ; may not be 
sued by citizens of other, 252; origin of, 
275, 292 ; their governments, 328-348. 



lvi 



INDEX. 



Statistics, Bureau of, 309. 

Suffrage, in Continental Congress, 50; in 
House of Representatives, 51; by those 
not naturalized, 91; in some States, 91; 
of women, 257; in different States, 346. 

Superintendent of the Census, 320. 

Supervisor, a road officer in Ohio, 342, 

Supremacy of the Constitution and Laws 
of the U. S., 237, 238. 

Supreme Court of the District of Colum- 
bia, 185. 

Supreme Court of U. S., constitutional 
provision for, 182, 183 ; organization of, 
left to Congress, 183 ; has pronounced 
void but few acts of Congress, 196, 197 ; 
list of Chief Justices of, 325 ; list of As- 
sociate Justices of, App., xi; salaries of 
Justices, 327. 

Surveyor, in the Custom-house, 310. 

Surveyors-General, of the Land office, 318. 



Taxation by States, 150. 

Taxation in Ohio, 342. 

Taxes, power of Congress to lay, 78 ; direct 
and indirect, 79 ; direct laid but five 
times by U. S., 80. 

Taylor, Zachary, President, 299. 

Tennessee, secession of, 225; reconstruction 
of, 227; admission of, 276; previously a 
territory, 277. 

Tenth Amendment, 249; often misquoted 
and perverted, 250 ; meaning of, 250. 

Territorial courts, 327. 

Territories, 293 ; government of, 220, 293, 
294. 

Territory, in U. S., under control of Con- 
gress, 215 ; Ordinance of 1787, prior to 
Constitution, 217; no provision in Con- 
stitution for acquisition of, 218 ; power to 
acquire incident to national sovereignty, 
218 ; sovereignty of, vested in the nation, 
219; relation of to the Union, 220; dif- 
ference between a State and, 220, 221. 

Texas, annexation of, 218 ; secession of, 
225; reconstruction of, 228; admission 
of, 284. 

Thirteenth Amendment, 252 ; ratification 
of. 253. 

Three fifths rule, origin of, 51. 



Titles of nobility, none shall be granted, 
144; proposed amendment touching, 262. 

Tompkins, Daniel D., Vice-president, 
App., i. 

Township government in Ohio, 340. 

Trade-marks, patents for, not now granted, 
117. 

Treason, defined, 203 ; petit and high, 204 ; 
constructive, 204; Aaron Burr tried for 
in 1807, 206 ; Congress to declare punish- 
ment for, 206; the act of 1790, that of 
1862, 208; no treason against a State, 209. 

Treasurer, duties of, 307. 

Treasury Department, 304; salary of the 
Secretary, 305. 

Treasury notes, 84; various kinds, 101; 
made legal tender in 1862, 102 ; are " bills 
of credit," 101; decision of Supreme 
Court as to, 102 ; not real money, 103. 

Treaties, powers of the President and 
Senate in making, 167 ; limitations of the 
power of, 168 ; case of payment of money, 
168 ; how framed, 169. 

Treaty, etc., no State shall enter into any, 
144 ; clause in Articles of Confederation, 
146. 

Trial, by jury, 198; question of unanimity, 
199 ; by military commission, 202 ; in the 
State where the crime was committed, 
248. 

Trustees, township, in Ohio, 340. 

Tyler, John, President, 299 ; Vice-presi- 
dent, App., i. 

U 

Unconstitutional, but few acts of Con- 
gress decided to be, 196. 

Union, relation of seceded States to the, 
228 ; admission of new States into, 215- 
221 ; 275, 293 

Useful arts, clause for promoting, 114. 

Utah Territory, 293. 



Van Buren, Martin, President, 299; 

Vice-president, App., i. 
Vermont, admission of, 275; from New 

York, 275. 
Veto, by the President, 75; use of, by dif- 
ferent Presidents, 76; not applicable to 



INDEX. 



lvii 



Amendments to the Constitution, 77; of 
Civil Rights Bill, 211 ; bill passed over, 
how certified, 297. 

Vice-president, president of the Senate, 
62; no Vice-president contemplated at 
first, 62; term of office, 151; mode of 
electing, 151-156 ; chosen by Senate once, 
158; list of, App.,i; salary of, 295; no pro- 
vision for filling vacancy in office of, 296. 

Villages, in Ohio, 343. 

Virginia, secession of, 225 ; reconstruction 
of, 228; ratification of the Constitution 
by, 270; temporary government in 1776, 
329. 

Vote, right to, 260; in Confederate States, 
66. 

Voting, various modes in Congress, 70. 

W 

War, Congress has power to declare, 120 ; 
action of Congress in the wars of the 
U. S., 120. 



War Department, 310; salary of the Secre- 
tary, 310. 

Warrants, for search, must be special, 247. 

Washington, George, elected General, 32; 
president of convention, 40; President, 
298. 

Washington Territory, 289, 293. 

Weights and measures, Congress has 
power to regulate, 94, 107; the metric 
system authorized, 108. 

West Virginia, 226 ; admission of, 290. 

Wilson, Henry, Vice-president, App., i. 

Wisconsin, admission of, 286. 

Witnesses, English practice as to, 202; 
rights of accused persons to, 202,247,248. 

Wyoming Territory, 286, 293. 



Yeas and nays, in Congress, 70; under 
Articles of Confederation, 70; used to 
delay proceedings, 70; in Ohio legisla- 
ture, 232. 










^ £++ 



\ 














G 






^ * 



> V "V. * S I ^ N. 'A 

v, <*■ >- /\ <*• 










,> 






0> '^r> 













s x * *- l B k 



tf 









V * 



o5 ^ 






a I 




* "% A* . •' v ' 

G 









o o x 












^ 






v c? 




























o 



V 







<V 



> 



LIBRARY OF CONGRESS 



021 051 430 2 



I 



SbIhIB MSI 

5538I1Ib8S WR 

HUm Mm 
iSfiiBBKoS 

HHI Hi 

M 

HiilSn M 

ililiiill 



wWnaAW 



I mm mm 

I 1 I 

HI Ilii 
H SIhS 

n fflWinnuntTTlIinflH l 



H 



I&88& 



BIS 



3SHi 



m 

BUS 



